Full opinion text
MEMORANDUM KATZ, District Judge. In the trial of this case, I saw the human wreckage of older Westinghouse employees, let go after years of service to the Company. Because these employees were eligible for their retirement benefits, they were denied the severance pay to which younger workers were entitled. Those persons eligible for early retirement were also denied severance pay, and had to draw down their reduced pension benefits to survive. This heartless corporate policy was justified by a variety of litigation ploys. These ranged from a belatedly invented corporate “policy” of providing a single income stream to laid off employees, to a' claim that the EEOC provided insufficient conciliation efforts, to a farfetched estoppel defense that Westinghouse had relied on the flawed arguments of government lawyers in earlier litigation of this issue which it lost. I find that Westinghouse’s practice of denying severance pay to its older employees eligible for pensions is blatant, willful age discrimination. I therefore enjoin the practice and award double damages to the injured employees. I also reject the EEOC’s shotgun approach of attacking a variety of other Westinghouse employment practices which are protected by law as bona fide pension and seniority arrangements. Therefore, I uphold the Westinghouse practices, other than denial of severance pay, at issue in this case. This case began on November 10, 1982, with an administrative charge filed with the EEOC by Charles Slackway. See Plaintiff’s Exhibit 1A. Processing of Slack-way’s charge culminated on June 7, 1983, with a letter of violation addressed to Westinghouse. See Plaintiff’s Exhibit 4B. The EEOC tried to conciliate the matter. These efforts proved fruitless, and a complaint was filed in this court in November, 1983. The complaint alleged: “[sjince before June 1,1980, and continuously up until the present time, Defendant has willfully engaged in unlawful employment practices at its Lester, Pennsylvania facility____” The complaint targeted defendant’s “failure to provide Layoff and Income Benefits” to thirty-five named individuals and “all other terminated or laid-off employees aged 60 and older who were eligible for early retirement benefits and/or received early retirement benefits.” Continued investigation of Slackway’s case led to further charges against Westinghouse. Once again, conciliation was unsuccessfully attempted. In August, 1984, the Commission filed an amended complaint that expanded the case by including defendant’s Concordville, Pennsylvania facility and increasing the number of plaintiffs to 117. It named the following ADEA violations: 1) denying layoff income benefits (LIB) to employees laid off prior to July, 1982, who were eligible for any type of retirement; 2) after July, 1982, giving laid off employees the option of selecting either LIB or retirement, but not both; 3) forcing laid off employees to retire prior to age 70 because LIB was not available; 4) denying early retirement to laid off employees who chose LIB; 5) denying recall to work to employees who were laid off and forced to retire; and 6) giving lower retirement benefits to laid off employees who were not eligible for retirement because of age at the time of their layoff, but who later became qualified for retirement benefits. Plaintiffs subsequently filed a second amended complaint in October, 1984. This complaint expanded the scope of the case to a nationwide complaint embracing all of defendant’s employees aged 40 or older, at all of its facilities. The EEOC’s charges implicate eight of defendant’s employment plans and practices. The eight challenged practices are: (1) pre-July, 1982, arrangements for pensions and layoff income benefits, (2) post-July, 1982, arrangements for pensions and layoff income benefits, (3) arrangements for management employees, (4) Advanced Retirement Plan I, (5) Advanced Retirement Plan II, (6) an “impact number” process of awarding special benefits to certain employees laid off as a result of location shutdowns, product line relocations, or job movements, (7) limitation of retirement benefits to those actually eligible at time of layoff, and (8) limitation of death prior to retirement benefits to spouses of employees actually eligible for the benefits at the time of death. Before I examine the issues surrounding these plans and practices, it is necessary to set forth their pertinent terms. The Pre-July, 1982, Arrangements For Pensions and Layoff Income Benefits Prior to July, 1982, Westinghouse employees were covered by a 1979 pension plan for represented employees, and a 1979 pension plan for non-represented employees. The pertinent characteristics of the plans were identical. 1. The plans encompassed four retirement categories. Thus, employees could take a “normal,” “deferred,” “early,” or “selected” retirement. See Joint Ex. 2 at 7, 47-50. 2. Employees were eligible for normal retirement at age 65. Normal retirees were entitled to a nonforfeitable pension if they were employed by Westinghouse on the day before their 65th birthdays and had begun this employment at some time preceding the first day of the month following their 60th birthdays. See Joint Ex. 2 at 47. 3. Employees could defer retirement. Retirements could not be deferred beyond the first day of the month following attainment of age 70. See Joint Ex. 2 at 47. 4. There were four early retirement possibilities. These were: a. If an employee was age 60 or older and had 10 or more years of service, then he or she could take an early retirement. See Joint Ex. 2 at 47. b. If an employee was laid off at age 59, and had between 10 and 30 years of service, then the employee could retire after his or her 60th birthday, provided he or she had not been re-employed by Westinghouse. The employee was not eligible for early retirement benefits if he or she received a lump sum, related to length of service, because of the layoff or separation. In other words, the employee could not take LIB. See Joint Ex. 2 at 48. c. If an employee was laid off before age 60, due to a location.closedown, and was either age 55 with 10 or more years service, or age 50 with 25 or more years of service, then he or she could take an early retirement. The employee was not eligible for early retirement benefits if he or she received LIB. Employees with contractual rights at another Westinghouse location, and employees offered employment at another Westinghouse location, were not eligible for early retirement. See Joint Ex. 2 at 48. d. If an employee between ages 50 and 60 with 25 or more years of service was laid off due to a job movement or product line relocation, then the employee could apply for early retirement. The employee was not eligible for early retirement if he or she received LIB. See Joint Ex. 2 at 48-49. 5. Selected retirement occurred in one of two situations. These were: a. If an employee had 30 or more years of service then he or she could choose to retire after his or her 58th birthday. See Joint Ex. 2 at 49. b. If an employee between ages 50 and 60 with 30 or more years of service was laid off due to a location closedown or a product line relocation, then he or she could take a selected retirement. The employee was not eligible for selected retirement if he or she received LIB. See Joint Ex. 2 at 49-50. 6. Layoff Income and Benefits (“LIB”), was provided to employees with at least two years of service who were laid off through no fault of their own. At minimum, these employees received LIB in an amount equal to four weeks’ pay. Employees’ Total Maximum Sums of LIB were equivalent to one week’s pay for each full year of service. See Joint Ex. 13 at 2-3. 7. LIB was provided in several different forms. a. When layoffs were projected to continue for more than six months, employees could elect to receive the total amount due in one lump sum. This election terminated the employee’s relationship with the Company. Thus, the employee lost all recall rights and credits for years of service, other than any rights existing under the pension plan. See Joint Ex. 13 at 3. b. If an employee wished to retain recall rights and service credits, he or she could elect LIB in the form of weekly payments. Under this arrangement, Westinghouse supplemented weekly federal and state unemployment benefits so that the combined benefits equalled 60% of the employee’s weekly pay. Receipt of the weekly company contributions was contingent upon receipt of each week’s federal and state unemployment benefits. See id. at 4. When federal and state benefits expired, weekly company benefits equal to 60% of the émployee’s weekly pay continued either until the total maximum sum had been paid out, or until twelve months had passed since the date of layoff. See id. at 4. If an employee was 59 years old and had ten years of service at the time of layoff, the LIB payments ceased when the employee turned sixty and became eligible for early retirement. See id. at 4. If . an employee was laid off for a year and had not been offered reemployment with Westinghouse, then weekly payments ceased and the employee received the balance of the total maximum sum in a lump sum. If, however, the employee was laid off within one year of eligibility for early retirement, then the employee received his or her early retirement pension at age 60. Id. at 4. 8. Employees were not eligible for LIB if they were eligible for early or selected retirement pension benefits. See id. at 2. The Post-July, 1982, Arrangements -For Pensions And Layoff Income Benefits In July, 1982, Westinghouse implemented certain changes in its pension benefits and LIB programs. The resulting plans apply to all employees. 9. Eligibility for normal retirement continues to accrue at age 65. As before, the retiring employee is entitled to a non-forfeitable pension if he or she was employed by Westinghouse on the day before his or her 65th birthday and had begun such employment before age 60. See Joint Ex. 3 at 36. 10. Employees can defer retirement. Retirements may not be deferred beyond the first day of the month following attainment of age 70. Id. 11. There are four possibilities for early retirement. a. If an employee has ten or more years of service, then he or she can take early retirement after turning 60. If the employee is laid off and elects to receive LIB benefits, then he or she is only entitled to vested pension benefits rather than full early retirement benefits. See id. at 36-37. b. If an employee is laid off after turning 59 but before age 60 and has between ten and thirty years of service, then he or she can retire after turning 60. The employee cannot take early retirement if he or she has returned to employment with Westinghouse before turning 60. If the employee elects to receive LIB, then the employee is not eligible for full early retirement benefits. See id. at 37. c. If an employee is laid off before age 60, due to a location shutdown, then the employee can take an early retirement if he or she meets one of the following age and years of service requirements: 1. Age 55 with 10 or more years of service. 2. Age 54 with 13 or more years of service. 3. Age 53 with 16 or more years of service. 4. Age 52 with 19 or more years of service. 5. Age 51 with 22 or more years of service. 6. Age 50 with 25 or more years of service. Employees with contractual employment rights at another Company location, and employees offered employment at another Westinghouse Location, are not eligible for early retirement. If an employee elects to receive LIB, then the employee is not eligible for early retirement. Id. at 37-38. d. If an employee between ages 50 and 60, with 25 or more years of service, is laid off due to job movement or product line relocation, then the employee can apply for early retirement. If the employee elects to receive LIB, then he or she cannot receive early retirement benefits. Id. at 38. 12. Selected retirement can occur in two situations. a. If an employee has 30 or more years of service, then he or she can retire between ages 58 and 65. If an employee is laid off and elects to receive LIB, then the employee is not eligible for selected retirement benefits. Id. at 38-39. b. If an employee between ages 50 and 60, with 30 or more years of service, is laid off due to location closedown, job movement, or product line relocation, then he or she can apply for selected retirement. Employees with contractual employment rights at another company location, and employees offered employment at another Westinghouse location, are not eligible for early retirement. If the employee elects to receive LIB, then the employee is not eligible for selected retirement benefits. Id. at 39. 13. The post-July, 1982, Employee Security and Protection Plan fulfills essentially the same purposes as the pre-July, 1982, Layoff Income and Benefits Plan. Thus, it provides income protection to employees who are laid off due to a location shutdown, job movement, product line relocation, or other reasons associated with the business rather than the employee’s fault. See Joint Ex. 14 at 1. The plan provides LIB under essentially the same terms as the pre-July, 1982, plan. See id. at 2, 2-6; see also supra paragraph 7 (describing the pre-July, 1982, LIB arrangements). The plan also encompasses Westinghouse’s “impact number” .process for awarding enhanced benefits for layoffs due to job movements, or product line relocations. See Joint Ex. 14 at 4-5; see also infra paragraphs 30-81 (describing impact number process). 14. If an employee is laid off after turning 59 and has 10 years of service, then he or she can elect to retire at age 60. If the employee makes this election, then he or she receives LIB until turning 60 or until the total maximum sum is paid, whichever is first. Id. at 7. Westinghouse’s Arrangements For Management Personnel 15. There are three components to Westinghouse’s arrangements for its managerial employees. These are: a management separation allowance program (“MSA”), see Joint Ex. 20, a pre-retirement income plan (“PRIP”), see id., and an executive pension plan, see Joint Ex. 4. 16. MSA benefits are similar to LIB benefits. MSA provides a total dollar sum in an amount related to years of service and level of salary at the time of separation. This sum is payable on a monthly or lump sum basis. See Joint Ex. 20. 17. If an employee desires MSA in a lump sum, then he or she must specifically request that form of payment. If the employee makes this election, then he or she forfeits life insurance benefits. Id. at 9-10. Under the monthly payment scheme, life insurance benefits, hospital expense and surgical operation insurance, maternity benefits, and major medical protection benefits continue with MSA payments or for 12 months, whichever period is shorter. Id. at 9. All other insurance benefits terminate on the last day worked. Id. at 10. 18. If an employee is laid off but is subsequently reemployed by Westinghouse, then he or she can keep all monthly payments received up to that time; however, lump sum payments in excess of the amount that would have been received in the monthly payments must be repaid. Id. at 11. 19. Prior to September, 1985, MSA benefits were not available to management employees who were eligible for an early or selected retirement pension either at the time of separation or at age 60. Id. at 7. Such employees may now select either MSA or pension benefits; however, they may not receive both. See T. Sept. 6 at 119-21. 20. PRIP provides lifelong monthly supplements to early or selected retirement pension benefits. Id. at 19. 21. PRIP benefit levels are determined by the reason for the employee’s separation, and the employee’s age and length of service. Id. 22. A management employee aged 59 but not yet 60, with between 10 and 30 years of service, receives monthly PRIP payments equivalent to the early retirement pension and PRIP supplement which he or she will receive at age 60. Id. In other words, such employees are treated as if they already are age 60, except that all money received is in the form of PRIP rather than allocated between pension benefits and PRIP. In order to qualify for such treatment, the reason for separation must be other than a location shutdown. Id. at 20. 23. Westinghouse also has an executive pension plan for its managerial employees. See Joint Ex. 4. Advanced Retirement Plans I & II 24. Westinghouse operated two advanced retirement programs during the time period in question. These plans are known respectively as ARP I and ARP II. 25. ARP I was in effect from June 1, 1982, through November 1, 1982. It provided certain benefits to employees who voluntarily chose to advance their date of retirement from locations with announced or contemplated reductions in force. See Joint Ex. 5 at 1. These benefits stemmed from pension plan improvements scheduled to take effect after the employees’ chosen retirement dates. Thus, ARP I removed incentives to delay retirement by making improved benefits available to employees who would not have received such benefits without delaying retirement. The purpose of the program was to eliminate the need to separate less senior employees by encouraging attrition through voluntary retirement. See id. Thus, the number of ARP I participants was to correspond to the number of employees who would otherwise be subject to the reduction in force. Similarly, the program was restricted to employee categories affected by the reduction in force. Id. 26. ARP I participants had to be eligible for retirement at some time between June 1,1982, and November 1,1982. Thus, they had to be age 58 with 30 or more years of service, or age 60 with 10 or more years of service, during the relevant time period. Id. at 2. 27. The ARP I pension plan improvements were effective on August 1, 1982. Employees who were eligible to retire before that date could elect to retire, and were furloughed until August 1. They received any supplement that was necessary to make unemployment compensation payments equivalent to pension plan benefits in effect at the time of furlough. Id. at 1. On August 1, these employees retired and commenced receiving their improved pension benefits. Id. Employees who were eligible to retire after August 1 could elect to retire on that date or, upon becoming eligible to retire, on the first day of any subsequent month up to November 1, 1982. Upon retirement, they received pension benefits under the improved plan. Id. at 1-2. 28. ARP II was similar in operation and purpose to ARP I. It was in effect between March 1, 1983, and September 1, 1983. See Joint Ex. 7. Like ARP I, it applied to locations and employee categories with announced reductions in force. Id. Participants had to be eligible for retirement at some time between March 1, 1983, and September 1, 1983. Thus, they had to be age 58 or 59 with 30 or more years of service, or age 60 or older with 10 or more years of service. See Joint Ex. 8. 29. ARP II pension plan improvements were effective on January 1, 1984. See Joint Ex. 7. ARP II participants were furloughed until that date. While on furlough, they received any payments necessary to bring their unemployment compensation up to 60% of their pay. See Joint Ex. 8. On January 1, their retirements became effective and they commenced receiving their improved benefits. Id. The Impact Number Process 30. The so-called “impact number process” is utilized in the event of layoffs due to job movements or product line relocations. See Joint Ex. 14 at 4-5. Such layoffs result from “the permanent discontinuance of the manufacturing of a product at a Company Location, provided that product continues to be produced by the Company, but at a different Westinghouse Location.” See Joint Ex. 11a at 102. 31. When a job movement or product line relocation takes place, the Company estimates the “number of employees on jobs affected” at the location experiencing the job movement or product line relocation. Joint Ex. 14 at 4. This number is also referred to as an “impact number.” The Company then assumes that any employee who is laid off from the location is affected by the job movement or product line relocation. Id. This assumption continues until the number of employees laid off at the location matches the pre-established impact number. Id. The impact number is also reduced by “normal attrition.” Id. If the impact number is not matched within five years after announcement of the job movement or product line relocation, then impact numbers cease to be available. Id. 32. Employees laid off from the location before the impact numbers are used up receive enhanced benefits. For employees with 15 or more years of service, these benefits take the form of a lump sum payment equal to one and one half times a week’s pay for each full year of service. Employees can elect one of the regular LIB options instead of the lump sum. Employees age 50 with at least 25 years of service can elect early retirement instead of the lump sum payment. Id. at 4-5. Limitation of Retirement Benefits to Employees Eligible At Time of Layoff or Death 33. Westinghouse retirement benefits are distributed according to eligibility criteria comprised of various combinations of age and years of service. The 1979 pension plan criteria are set forth in paragraphs 2-5, supra. The 1982 pension plan criteria are set forth in paragraphs 9-15, supra. In order to receive benefits, employees must have attained one of the requisite age and service combinations at the time of retirement or layoff. 34. Both the 1979 and 1982 Westinghouse Pension Plans provide benefits to the spouses of employees who died before attaining retirement age. To qualify for such benefits, the recipient spouse must have been married to the deceased employee for at least one year. Furthermore, the deceased employee must have completed 30 years of service, or have attained age 50 and completed 15 years of service, or have attained age 60 and completed 10 years of service. See Joint Ex. 1 at 8; Joint Ex. 3 at 3. 35. Eligible spouses receive monthly pensioh payments for life. In any event, payments attributable to the contributory portion of the pension plan are guaranteed for 60 months. Thus, if the spouse dies before receiving 60 payments, the balance due from the contributory portion of the plan is paid to a designated beneficiary. See Joint Ex. 1 at 8; Joint Ex. 3 at 3. DISCUSSION Issues In The Case The EEOC charges that each of the above-described plans violates the ADEA. I will briefly describe plaintiff’s arguments, as well as Westinghouse’s responses. I will then analyze the merits of the parties’ contentions. 1. The EEOC contends that the interaction of eligibility criteria for retirement and pension benefits with eligibility criteria for severance pay violates the ADEA because it results in denial of severance pay on the basis of age. Under the 1979 pension plan, employees who were laid off and were eligible for any type of retirement could not receive severance pay. Under the 1982 pension plan, laid off employees who were eligible for retirement could choose between pension benefits and severance pay, but could not receive both. Until September, 1985, management personnel who were eligible for retirement were not eligible for severance pay. Westinghouse contends that the interaction of its severance pay plans and pension benefits plans does not violate the ADEA. On the contrary, it argues that the plans are bona fide employee benefit plans exempt from the ADEA. See 29 U.S.C.A. § 623(f)(2). 2. The EEOC contends that ARP I and ARP II effectively forced or induced older laid off employees to retire and take their pensions. The EEOC interprets the ADEA to require distribution of both LIB and pension benefits; it contends that employees would not have participated in ARP I and ARP II if they had been able to take both LIB and their pensions. In response, Westinghouse avers that participation in ARP I and ARP II was voluntary. According to Westinghouse, employees participated in ARP I and ARP II because “the total package of early retirement benefits was more valuable to them than LIB would have been and because the ARP programs offered ‘considerable [benefits] in favor of the pensioner. See Defendant’s Post-Trial Brief at 63. 3. The EEOC challenges the terms of the Pension Plan that preclude a laid off employee who was not old enough to retire when laid off from retiring upon attaining the minimum age. For example, an employee laid off at age 58 with 10 years of service cannot retire when he turns 60. Instead, the employee is limited to a lower Vested pension, without a pension supplement and without continuation of insurance. Plaintiff’s Post-Trial Memorandum at 59. According to the EEOC, the employee who is laid off with the requisite years of service should receive benefits when he or she attains the requisite age. For example, if an employee with 15 years of service is laid off at age 48, then benefits should commence when the employee turns 50. The EEOC similarly challenges the limitation of death prior to retirement benefits to spouses of employees who were actually eligible for them at the time of death. According to the EEOC, benefits should be distributed upon the anniversary of the deceased’s qualifying birthday. That is, if an employee dies with 15 years of service dies at age 48, then benefits should commence when the deceased would have turned 50. Westinghouse contends that the limitation of retirement benefits and death prior to retirement benefits to employees and spouses of employees actually eligible at the time of layoff or death is permissibly justified by cost considerations. 4. Because layoffs proceed on a “last hired, first fired” basis, employees most likely to receive impact numbers and consequent enhanced benefits are those with the least seniority. The EEOC therefore contends that the impact number process discriminates against older employees because they are disproportionately unable to receive impact number benefits. Westinghouse contends that this effect is the result of a bona fide seniority system exempt from the ADEA. See 29 U.S.C.A. § 623(f)(2). 5. Westinghouse offers- three affirmative defenses to the EEOC’s charges. First, it contends that the EEOC is es-topped from challenging the 1982 pension plan. Second, it argues that the EEOC did not meet its statutory obligation to conciliate any alleged violations other than those in the original complaint. Third, it argues that the EEOC’s amended complaints are barred by the statute of limitations. Westinghouse therefore urges that all allegations other than those in the original complaint pertaining to the 1979 plan should be dismissed. 6. The final issues in this case involve the question of willfulness. Under the ADEA, a finding of willfulness triggers application of a three year statute of limitations. It also triggers availability of liquidated damages. If I find Westinghouse in violation of the ADEA, I must therefore determine three things. First, I must select the applicable willfulness standards for statute of limitations and liquidated damages purposes. Second, I must determine whether the three year statute of limitations applies to this case. Third, I must determine whether liquidated damages are available to the plaintiffs in this case. I will begin with defendant’s affirmative defenses. Next, I will consider the validity of defendant’s LIB and pension plan arrangements. I will then consider the remaining challenged practices: ARP I and ARP II, the limitation of retirement benefits and death prior to retirement benefits to employees and spouses of employees actually eligible at the time of layoff or death, and the impact number process. Finally, I will take up the willfulness issues. Defendant’s Affirmative Defenses I reject defendant’s affirmative defenses. Thus, the EEOC is not barred from litigating any of its claims and all of the above-described issues are properly before this court. 1. Estoppel In 1982, Westinghouse changed its programs to provide an option between LIB and pension benefits. It claims that these changes were made in reliance upon statements made by the EEOC. It therefore argues that the EEOC is estopped from challenging Westinghouse’s 1982 practices. Westinghouse’s estoppel claim is based upon events in another lawsuit in the United States District Court of New Jersey. In the course of that litigation, counsel for the EEOC argued that provision of an option between LIB and pension benefits would satisfy the ADEA. Specifically, counsel for the EEOC stated: “What they are entitled to be is made whole under'. \. the Age Section, and to be made whole they are only entitled to that option, [between taking early retirement benefits or severance pay] whichever one they accepted.” See D.Ex. 38(b) at 37-38. Westinghouse also relies upon arguments made by the EEOC in a reply brief filed with the Third Circuit during its appeal from the District Court’s decision. The pertinent terms of the brief stated: “the Commission has always asserted that the employee age 55 and over should have had the option to choose either severance pay or early retirement payments____ Such an option would not have been discriminatory.” See D.Ex. 38(a) at 8-9. In order to establish estoppel under the ADEA, Westinghouse must show that it acted in good faith conformity with, and in reliance on, a written administrative regulation, order, ruling, approval, or interpretation of the EEOC. See 29 U.S.C.A. § 259 (West 1985) (Portal-to-Portal Act, incorporated into ADEA by 29 U.S.C.A. § 626(e)). Reliance upon an oral declaration of an agency official is not sufficient to estop the government. See Anness v. United Steelworkers of America, 707 F.2d 917, 921-22 (6th Cir.1983) (interpreting estoppel provisions of ADEA). This means that Westinghouse must have relied upon a formal, written agency pronouncement. Id. To establish non-statutory, equitable estoppel, Westinghouse must demonstrate the existence of several elements. These are: 1) EEOC words, acts, conduct or acquiescence causing Westinghouse to believe that an option arrangement would satisfy the ADEA, 2) EEOC willfulness or negligence with regard to such acts, conduct or acquiescence, and 3) detrimental reliance by Westinghouse. See Lovell Manufacturing v. Export-Import Bank of the United States, 777 F.2d 894, 898 (3d Cir.1985). Westinghouse’s reliance must have been reasonable. Id. (quoting Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984)). Finally, because Westinghouse seeks to estop the government, there must have been some affirmative misconduct on the part of the EEOC. Id. at 899. I find that Westinghouse has not established the elements of estoppel. First, even assuming that the words or acts of counsel for the EEOC caused Westinghouse to change its LIB and pension plans, and even assuming that counsel for the EEOC acted willfully or negligently and engaged in affirmative misconduct, any reliance by Westinghouse was unreasonable. The EEOC is not bound by erroneous statements of its trial counsel. See Donovan v. I and J, Inc., 567 F.Supp. 93, 104 (D.N.M.1983). EEOC trial counsel had no actual or apparent authority to speak for the agency as a whole. Cf. Santos v. Franklin, 493 F.Supp. 847, 855-56 (E.D.Pa.1980) (actual and apparent authority of government actor are relevant to estoppel). Westinghouse’s experienced counsel were well aware of the limits of EEOC counsel’s authority. Any reliance on EEOC counsel’s statements was therefore unreasonable. Westinghouse’s purported reliance is also unreasonable because of the nature and context of the statements of EEOC counsel. The statements were not official agency pronouncements directed towards charting a course of future conduct. On the contrary, they were arguments made in the process of advocacy. Such statements do not bind the EEOC. See Heckler v. Community Health Services of Crawford County, Inc., 104 S.Ct. at 2227; 29 U.S.C.A. § 259 (requiring formal, written agency pronouncement for estoppel under the ADEA). At bottom, I find that Westinghouse in fact did not rely upon the statements of EEOC trial counsel. Instead, the 1982 change was an independent tactical decision made for a perceived litigation advantage. Stuart Saltman, Westinghouse Chief Counsel for Human Resources, testified that he reviewed the transcript of EEOC trial counsel’s statements made in the District Court of New Jersey. He then recommended that “serious consideration” be given to “attempting to ... cut off future liability with respect to the issues that were involved in the L.I.B. ... litigation ... and serious consideration be give[n] [sic] to cutting down future liability by adopting the position that EEOC had taken as reflected in the statements____” See T. Sept. 10 at 42 1. 9-15. Mr. Saltman’s recommendation was based upon more than the transcript, however. He testified that it stemmed from continuing familiarity with the position that the EEOC had taken, which I had both heard from others and seen in the documents that had been submitted to me over the course of the history of this thing____ This [transcript] was a confirmation in writing writing, of the fact that that was the EEOC’s position ... in 1978. ... [t]he attorney on my staff who was handling the case walked in, sat down in my office and said he had been talking to the Department of Labor about the charge ... and said that the Department of Labor in essence takes the position that the plan is illegal because it didn’t provide an option. See T. Sept. 10 at 48-50. Mr. Saltman thus perceived what he believed was the government’s “informal position” as early as 1978, but the Company made no change until July, 1982. The change was set in motion no earlier than March, 1982. See id. at 51. The delay suggests that the Company did not rely upon the statements of EEOC trial counsel. Even if there was reliance, it was not detrimental, because Westinghouse did not change its position for the worse. Westinghouse claims that its 1979 plan was valid; it implemented the 1982 plan as an independent business and legal judgment to reduce the risks of future liability. See T. Sept. 10 at 42 1. 4-24, 43 1. 1-8. If the statements had not been made, Westinghouse would have defended its 1979 plan. In short, Westinghouse’s position did not change in reliance on the EEOC lawyer’s argument in the New Jersey case. Finally, there is no sign of any affirmative government misconduct supporting estoppel. See Donovan v. I and J, Inc., 567 F.Supp. at 103-04. Mere provision of erroneous information is usually not sufficient to establish estoppel. See Portmann v. United States, 674 F.2d 1155, 1165 (7th Cir.1982); Donovan v. I and J, Inc., 567 F.Supp. at 104. At minimum, estoppel appears to require an “affirmative misrepresentation.”. See Santos, 493 F.Supp. at 853. The statements at issue in this case cannot be so characterized. Trial counsel’s statements were not affirmative misrepresentations because his role did not involve policymaking. He was arguing a case, not stating EEOC policy. 2. EEOC Good Faith and Conciliation According to Westinghouse, the EEOC failed to conciliate any claims other than those regarding the pre-1982 LIB program at the Belleville, New Jersey and Lester, Pennsylvania facilities. The Company therefore urges that all other charges should be dismissed. Under the ADEA, the EEOC must “attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of [the ADEA] through informal methods of conciliation, conference, and persuasion.” See 29 U.S.C.A. § 626(b). This means that the Commission must give employers an opportunity to comply voluntarily with the ADEA. See Brennan v. Ace Hardware Corp., 495 F.2d 368, 374 (8th Cir.1974). “ ‘Formal methods’ ” of enforcement are to be applied “ ‘only in the ultimate sense.’ ” Id. (quoting legislative history). In practice, fulfillment of the obligation to conciliate must be evaluated on the facts in each case. See Marshall v. Sun Oil Company (Delaware), 605 F.2d 1331, 1334 (5th Cir.1979). Nonetheless, some requirements appear to be common to all cases. The employer must be told how to achieve compliance; “[p]ersuasion cannot be accomplished if the desired goal is unknown.” See Brennan, 495 F.2d at 375. Specifically, the employer should be informed (1) of the ways compliance may be achieved, (2) that affected employees may receive “make whole” remedies, (3) that the Commission may institute legal action, and (4) that the employer may respond to the Commission’s allegations. See Marshall v. Sun Oil Company (Delaware), 605 F.2d at 1334-35; see also Brennan, 495 F.2d at 375. I find that the Commission met all of these requirements. Westinghouse was made aware that the Commission’s goal was elimination of the named practices. Westinghouse also knew that “make whole” remedies were implicated, because the Commission advised Westinghouse that “full restitution” in the initial Slackway case entailed full eligibility for LIB. See P.Ex. 4C. The letters of violation issued to Westinghouse advised the Company of the Commission’s allegations, invited conciliation, and explicitly referred to the possibility of litigation. Moreover, a follow-up to the July 16, 1984, letter of violation advised Westinghouse that “while we will continue to attempt to reach a voluntary settlement of this case, the case will be referred to the Legal Unit for litigation consideration.” See P.Ex. 4E, 4F, & 4G. The Commission also fulfilled its duties in the actual conciliation process. The EEOC’s compliance with its obligation to conciliate is measured by the effort it expends. See, e.g., EEOC v. KECO Industries, Inc., 748 F.2d 1097, 1102 (6th Cir.1984) (court should only determine whether EEOC attempted conciliation; form and substance is within EEOC discretion); EEOC v. Prudential Federal Savings & Loan Association, 763 F.2d 1166, 1168 (10th Cir.) (enough that Commission makes a sufficient albeit limited effort to conciliate), cert. denied, — U.S. -, 106 S.Ct. 312, 88 L.Ed.2d 289 (1985). The EEOC’s efforts are sufficient if “it makes a sincere and reasonable effort to negotiate by providing the defendant an ‘adequate opportunity to respond to all charges and negotiate possible settlements.’ ” See id. at 1169 (quoting Marshall v. Hartford Fire Insurance Company, 78 F.R.D. 97, 107 (D.Conn.1978)). The EEOC’s conciliation attempts in this case met these criteria. In June, 1983, the Commission attempted to conciliate the initial Slackway charge. See P.Ex. 4B, 4C. After meeting with the EEOC, Westinghouse rejected the Commission’s conciliation proposal. See P.Ex. 4C. The EEOC then advised Westinghouse that it would consider litigation but would also continue to attempt a voluntary settlement. See P.Ex. 4D. On July 16, 1984, the EEOC issued its second letter of violation. The letter added new charges, and again offered conciliation. See P.Ex. 4E. Westinghouse did not respond to the conciliation offer. See P.Ex. 4F. On September 14, 1984, the EEOC issued its third letter of violation. This letter expanded the case to nationwide scope, and again offered conciliation. See P.Ex. 4G. Once again, Westinghouse did not respond to the conciliation offer. See T. Sept. 10 at 64 1. 1-19. Finally, I ordered a conciliation effort. Pursuant to my order, a conciliation conference took place in January, 1985. See id. at 67-70. Westinghouse subsequently informed the. EEOC that it found the Commission’s conciliation proposal “unacceptable in its present form.” See P.Ex. 4H. Clearly, the Commission made a sustained conciliation effort. Westinghouse alleges that the Commission’s efforts were not genuine, because the EEOC acted in bad faith. Westinghouse supports this allegation with several arguments. First, Westinghouse argues that the EEOC could not, and did not, approach conciliation in good faith once it began litigation on the Slackway charge. Second, Westinghouse contends that the Commission did not adequately investigate the charges leveled in its letters of violation. Third, Westinghouse argues that the EEOC demonstrated bad faith by giving Westinghouse too short a time to respond to the letters of violation. Finally, Westinghouse contends that the EEOC came to the court-ordered conciliation with five new inadequately investigated allegations, ignored court orders to suspend discovery during the conciliation period, and revealed its insincerity by designating its trial attorney as its conciliator. I find that the EEOC acted in good faith. It is of no consequence that the EEOC added, and attempted to conciliate, charges after filing a judicial complaint. Once a letter of violation has been sent, the employer is well aware that litigation may ensue. Thus, “[ajctions initiated by the Secretary before the termination of conciliation would not place undue pressure on the employer to settle the charges....” See Vance v. Whirlpool Corporation, 707 F.2d 483, 488 (4th Cir.), modified on other grounds, 716 F.2d 1010 (4th Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1600, 2678, 81 L.Ed.2d 873 (1984). While it is true that “a Commission lawsuit brought before any attempt at conciliation is premature,” see EEOC v. Hickey Mitchell Co., 507 F.2d 944, 948 (8th Cir.1974) (Title YII case), a suit is not premature once conciliation has commenced. What is crucial is provision of an opportunity to conciliate. See id. I find that Westinghouse was provided with conciliation opportunities. Westinghouse was informed adequately of the Commission’s allegations. The letters of violation named specific Westinghouse policies and practices. While the EEOC did not give Westinghouse a great deal of time to consider its charges and conciliation offers, Westinghouse only had to make an initial decision whether to respond in good faith. A full-blown answer was not required. Thus, the Company was given an adequate response time. Nonetheless, it did not respond. The fact that the Commission did not limit itself to the charges enumerated at the outset does not mean that it acted in bad faith. The EEOC is not limited to its initial allegations; rather “a complaint filed by the EEOC is limited to the investigation reasonably expected to grow out of the initial charge of discrimination.” EEOC v. KECO Industries, Inc., 748 F.2d 1097, 1101 (6th Cir.1984). In KECO Industries, Inc., an individual sex discrimination charge broadened into an EEOC claim on behalf of all of the defendant’s female employees. The Sixth Circuit held that this was proper because “the only difference between the later charge and ... initial charge is the number of persons victimized____ As this later class-based claim brought by the EEOC could have reasonably ' been expected to grow out of Ms. Grimes’ individual complaint of discrimination, no new additional proceedings were necessary.” See id. at 1101. Because all of the allegations in this case involve the operation of defendant’s LIB and pension plans, Westinghouse could “reasonably have expected” the additional charges in the EEOC’s second and third letters of violation to grow out of the initial Slack-way charge regarding denial of LIB. Westinghouse’s arguments in effect urge that the Commission must thoroughly investigate and present all charges at the outset of the conciliation process, and that the filing of a court complaint bars all further investigation, conciliation, or development of the case. I disagree. The EEOC does not have to conduct an exhaustive investigation before it may act. See e.g., Marshall v. Hartford Fire Insurance Co., 78 F.R.D. 97 (D.Conn.1978). An independent requirement of exhaustive investigations would reward the employer who discriminates on a large scale and undermine the legislative goal of obtaining voluntary compliance in these cases. The large scale discriminator would present the Secretary with an onerous and costly burden of investigation if the Secretary were required to prove each individual case of discrimination. Because a limited number of investigators is available, such a burden would frustrate the Secretary’s ability to attempt conciliation in many cases. See Marshall v. Sun Oil Co. (Delaware), 605 F.2d at 1334-35. In sum, “[t]o allow the employer an opportunity to answer its allegations, the Department should reveal its basis for making them, even though that basis is only circumstantial evidence. But the Secretary has no obligation to ‘prove’ to the employer that he has committed acts of discrimination.” Marshall v. Hartford Fire Insurance Co., 78 F.R.D. at 105. It is important to “ ‘evaluate one party’s efforts with an eye to the conduct of the other party.’ ” See EEOC v. Prudential Federal Savings and Loan Association, 763 F.2d at 1169 (quoting Marshall v. Sun Oil Co., 605 F.2d 1331, 1335 (5th Cir.1979)). In this case, defendant rejected the EEOC’s first conciliation proposal. Defendant did not even respond to the second and third conciliation offers. In fact, the evidence suggests that Westinghouse never gave serious consideration to the possibility of conciliation. Mr. Salt-man, Chief Counsel for Human Resources for Westinghouse, testified that he decided that the EEOC was acting in bad faith and was conducting a “sham conciliation, investigation and determination process____” See T. Sept. 10 at 65 1. 7-10. This arrogant attitude shot down plaintiff’s efforts toward conciliation. Westinghouse simply chose to play hardball. It took the position that it had not violated the ADEA, see id. at 56-66; P.Ex. 4C. Given the Company’s position, the EEOC appropriately acted. “[C]ourts have held that the Secretary is not required to continue conciliation efforts after the defendant has stated that it believes it has not been guilty of wrongdoing but may proceed to litigation to determine that issue.” See Marshall v. American Motors Corp., 475 F.Supp. 875, 879 (E.D.Mich.1979). 3. The Statute of Limitations And Relation Back Of Amended . Complaints Westinghouse’s third affirmative defense is that the claims asserted in the EEOC’s amended complaints are barred by the statute of limitations. The EEOC argues that these claims “relate back” to its original complaint and are therefore within the statute of limitations. The amended complaints in this case pose two problems. First, I must determine whether the EEOC is barred from adding the five new issues that appeared in its first and second amended complaints. Second, I must determine whether the EEOC is barred from broadening the scope of the case to a nationwide challenge, in effect adding new plaintiffs. I conclude that neither the additional allegations nor the broadened scope are barred by the statute of limitations. Under Rule 15(c) of the Federal Rules of Civil Procedure, an amended complaint that would otherwise be barred by the statute of limitations is considered timely if it “relates back” to the original complaint. Relation back is permitted whenever “the claim ... asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading — ” See Fed.R.Civ.P. 15(c). Rule 15(c) is liberally interpreted and applied. See Unicure, Inc. v. Thurman, 97 F.R.D. 1, 6 (W.D.N.Y.1982). Standards for the application of Rule 15(c) ensure defendants of notice of the conduct that is ultimately challenged in court. See Clipper Express v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1259-60 n. 29 (9th Cir.1982), cert. denied, 459 U.S. 1227, 103 S.Ct. 1234, 75 L.Ed.2d 468 (1983). Fair notice of the general fact situation at issue is deemed sufficient. See 3 J. Moore, Moore’s Federal Practice 1115.15[3] (2d ed. 1985). Thus, under the rule’s “conduct, transaction, or occurrence” test, “an amendment need only spring from the same core event or transaction as that set out in the original complaint,” see Drakatos v. R.B. Denison, Inc., 493 F.Supp. 942, 945 (D.Ct.1980). The addition of new theories of recovery similarly is permissible when the new claims are not “based on events different from or in addition to those set out in the original complaint.” See Baruah v. Young, 536 F.Supp. 356, 364 (D.Md.1982); see also Santana v. Holiday Inns, Inc., 686 F.2d 736, 739 (9th Cir.1982). The concept of notice also guides the addition of parties. “In deciding whether an amendment relates back to the original claim, notice to the opposing party .of the existence and involvement of the new plaintiff is the critical element.” Avila v. Immigration and Naturalization Service, 731 F.2d 616, 620 (9th Cir.1984). Thus, relation back depends upon whether defendants “[a]t some point ... have notice of who their adversaries are.” Leachman v. Beach Aircraft Corp., 694 F.2d 1301, 1309. Such notice exists when there is an identity of interests between the old and new plaintiffs. See id.; see also 3 J. Moore, supra, at 15.15[4.-2]. I find that the issues added in the EEOC’s first amended complaint relate back to the original complaint. Like the original complaint, the five allegations added in the EEOC's first amended complaint are concerned with defendant’s denial of LIB to persons eligible for retirement. Thus, they involve the same “transaction, occurrence, or core events” that appeared in the original complaint. I find that the expansion of the scope of the litigation in the EEOC’s second amended complaint also relates back to the original complaint. Westinghouse knew that its severance pay plans were targeted by the EEOC. These plans were in effect nationwide. Thus, Westinghouse knew that the Commission’s challenge could apply to any and all of its facilities. Similarly, to the extent that the expansion of the case added new parties on the plaintiff’s side, the new and the old parties have an identity of interest; namely, claims arising out of defendant’s severance pay plans. Westinghouse thus had reason to know that any employee affected by the challenged policies was a potential party to this case. In sum, the issues and interests have remained the same throughout this litigation. The heart of the matter is the legality under the ADEA of defendant’s severance pay, pension, and retirement programs. I will now consider those programs. The Validity Under the ADEA of Westinghouse’s Severance Pay, Retirement, and Pension Plan Arrangements The standards for determining whether an employer has engaged in age-based employment discrimination are borrowed from Title VII jurisprudence, see Massarsky v. General Motors Corp., 706 F.2d 111, 117 (3d Cir.1983), cert. denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983). Plaintiffs may proceed under two theories. Under the disparate treatment theory of discrimination, plaintiffs must demonstrate intentional discrimination; that is, that an employer expressly applies age-based standards in its treatment of employees. See id. at 117. Under the disparate impact theory of discrimination, plaintiffs must demonstrate that an employer’s application of facially neutral criteria disproportionately and adversely affects older employees, and cannot be justified by business necessity. Id. The EEOC’s challenge of seven separate Westinghouse policies presents four legal issues. These are: (1) whether Westinghouse’s denial ’ of LIB and MSA to laid off, retiring employees violates the ADEA; (2) whether ARP I and ARP II violated the ADEA; (3) whether Westinghouse’s limitation of retirement benefits to employees actually eligible for retirement at the time of layoff, and its limitation of death prior to retirement benefits to spouses of employees actually eligible for the benefits at the time of death, violates the ADEA; and (4) whether Westinghouse’s impact number process violates the ADEA. The first three issues fall within disparate treatment analysis, while the last issue falls within disparate impact analysis. I will begin with the three disparate treatment issues. The Disparate Treatment Issues Under the disparate treatment theory of discrimination, the plaintiff ultimately must demonstrate that the defendant engaged in purposeful or intentional discrimination. Id. This task is customarily broken down into several steps. See id. at 117-18; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (pattern of proof of disparate treatment). “[T]he plaintiff has the initial burden to establish a prima facie case of unlawful discrimination by a preponderance of the evidence.” See Massarsky, 706 F.2d at 118. This may be done by direct or circumstantial evidence. See Maxfield v. Sinclair International, 766 F.2d 788-91 (3d Cir.1985). Once the plaintiff has established a prima facie case, the employer’s burden is to “dispel the adverse inference” by “articulating ‘some legitimate, non-discriminatory reason’ ” for its actions. See Massarsky, 706 F.2d at 118 (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). Once the employer has made this articulation, “the plaintiff must then prove that the asserted reason was merely a pretext for unlawful discrimination.” Id. The ultimate burden of persuasion is at all times with the plaintiff. Id. Thus, an ADEA plaintiff must show either that age was a determinative factor in the employer’s decision, Smithers v. Bailar, 629 F.2d 892, 897-98 (3d Cir.1980), or that the employer’s policy is discriminatory on its face. Massarsky, 706 F.2d at 119. Finally, the employer may escape liability under the ADEA if it can demonstrate that its policy is within one of the statutory exceptions. These exceptions provide affirmative defenses to an employer who would otherwise be found to have engaged in age-based discrimination. See Trans World Airlines v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 622, 83 L.Ed.2d 523 (1985). 1. Denial of Severance Pay to Retiring Employees This issue embraces Westinghouse’s preJuly, 1982, LIB and pension plans, its post-July, 1982, LIB and pension plans, and its MSA and managerial pension plans. The validity of these programs depends on whether the ADEA permits denial of severance pay to laid off employees who retire and take their pension benefits. I find that Westinghouse’s denial of severance pay to employees who take retirement is age-based discrimination. Defendant’s programs give employees who are eligible for retirement no practical choice but to take retirement benefits and forego severance pay. Therefore, receipt of severance pay is conditioned upon non-retirement status, and laid off workers are treated differently on the basis of age. Westinghouse asserts that its programs have a “legitimate, non-discriminatory” justification. This justification is defendant’s purported policy against “double dipping” into Westinghouse benefit programs. According to Westinghouse, its benefit programs are designed to ensure each laid off employee a “stream of income”; however, each income stream may flow from only one source. Defendant thus argues that severance pay is not denied on the basis of age but on receipt of an income stream in the form of pension benefits. This policy allegedly has existed since the 1960 inception of LIB. Westinghouse’s Director of Compensation Benefits and Human Resources Program testified that “[t]he LIB plan never intended to have any relationship to retirees who had already been provided by the company with an income stream. We were not interested in providing the doubledip in the corporate coffers for retirees.” See T. Sept. 5 at 64 1. 10-14. I do not believe defendant’s doubledipping rationale, because it is inconsistent. Specifically, the severance pay plans make an exception for employees age 59 with more than 10 but less than 30 years of service. If an employee in this category is laid off, he or she may receive LIB until attaining age 60. At age 60, the employee can take full early retirement benefits, including medical insurance and a supplementary pension. See Jt.Ex. 13 at 4; Jt.Ex. 14 at 7. This arrangement is contrary to the alleged doubledipping rule. No such arrangement is provided for 57 year old employees with 30 years of service, who are one year shy of eligibility for selected retirement. Defendant supports its treatment of the 57 year olds with the alleged doubledipping rule. See T. Sept. 5 at 65-72. Westinghouse attempts to explain this inconsistency by arguing that the exception for 59 year olds is a result of collective bargaining. It also insists that the exception is not doubledipping. See T. Sept. 5 at 66-67. This explanation does not wash. The collective bargaining process does not protect invalid plans, see 29 U.S. C.A. § 623(c). Moreover, Westinghouse’s insistence that the 59 year olds do not doubledip, but the 57 year olds would, makes no sense. Another inconsistency is defendant’s assertion that severance pay “provide[s] the income stream only when [the employee] did not have an income stream from some other source,” see T. Sept. 5 at 63 1. 18-25. In reality, severance pay is available to employees who have other sources of income. For example, if employees elect not to receive severance pay during the 12 month period after layoff, and obtain other employment during that period, they can still receive severance pay at the end of the period. See id. at 50 1. 7-18. The doubledipping rationale is nonsense. Its unstated premise is that severance pay and pension benefits are fungible. In actuality, they are distinct benefits with different purposes. Severance pay is a short term separation allowance. It affords an employee breathing room to think through his situation and alternatives, and provides time to seek new employment without starving. In contrast, the pension is a provision for long term retirement. In short, severance pay is a fringe benefit related to length of service and the occurrence of a layoff. See EEOC v. Westinghouse, 725 F.2d at 224-25; cf. EEOC v. Bordens, Inc., 724 F.2d 1390, 1396-97 (9th Cir.1984) (Borden’s severance pay policy was a “simple fringe benefit” rather than a part of its retirement and pension benefits package). Pension benefits are not a substitute for severance pay. Westinghouse denies that its policy discriminates on the basis of age. Defendant asserts that the criterion for receipt of severance pay is not age but non-retirement status. I reject this argument. Age and retirement are, in fact, so closely linked that a criterion based on one is a criterion based on the other. See EEOC v. Bordens, Inc., 724 F.2d 1390, 1393 (9th Cir.1984) (rejecting a severance pay arrangement similar to Westinghouse’s); EEOC v. Curtiss-Wright Corp., 34 Empl. Prac.Dec. ¶ 34, 483 (CCH) (D.N.J.1982) (age is a determinative factor when severance pay is based upon retirement status). Massarsky v. General Motors Corp., upon which defendants rely, is distinguishable. Massarsky upheld a policy which insulated from layoff employees enrolled in an academic/work-experience program. Although participants in the program tended to be young employees, the Court found that “[t]here is nothing to indicate that older persons were precluded from becoming GMI students____ We simply cannot infer that the Company was using student status as nothing more than a proxy for age....” Massarsky, 706 F.2d at 119. In contrast, this case invites such an inference. Retirement status is not an age-neutral factor. Unlike enrollment in the GMI program, it is related solely to age. Finally, Westinghouse invokes the bona fide employee benefit plan defense. See 29 U.S.C.A. § 623(f)(2). An employer claiming this defense must establish three things. These are: (1) that the employer was acting in observance of the terms of (2) a bona fide employee benefit plan (3) w