Full opinion text
DECISION AND ORDER SKRETNY, District Judge. 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 plaintiffs 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; (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 them 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 loiv 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. FACTS 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, 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. Defendant’s financial decline continued, and in January 1983 it undertook to reduce its workforce further through an enhanced voluntary severance package. The benefits paid under that package included the same supplemental monthly benefit available under the July 1982 early retirement package. The benefits also included health and life insurance coverage. Four of the five employees who were offered this enhanced voluntary severance option accepted the package, including plaintiffs Salefske and Wik. 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, Habieht, 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 Act, 29 U.S.C. § 255(a). Shortly before trial, defendant made motions in limine 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, 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 plaintiffs 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. 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 ease 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 “[f]or 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, 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, 975, 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, 487 U.S. 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.” 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 i the involuntary retirement of any individual ... because of the age of such individual.” 29 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 plaintiffs 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 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. Plaintiffs have introduced all relevant testimony and other evidence relating to their disparate impact claim. To prevail on this claim, plaintiffs were required to show that the early retirement and enhanced early severance packages were involuntary, coercive, or were otherwise subterfuges to evade the purposes of the ADEA. Here, after viewing all the evidence adduced by plaintiffs in a light most favorable to them, this Court has determined that plaintiffs have failed to introduce sufficient evidence with regard to this issue, and judgment must be awarded as a matter of law to defendant on plaintiffs’ disparate impact claim. 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 nonfringebenefit aspect of the employment relation.” Betts, 492 U.S. 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, 434 U.S. 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 the plaintiffs were already entitled. Therefore, plaintiffs have failed to raise an inference that the challenged packages were not bona fide. Consequently, these packages cannot be considered in the aggregate, and there is no showing of disparate impact. It is clear that plaintiffs have failed to raise an inference that the packages were subterfuges to evade the purposes of the ADEA. In fact, defendant’s evidence that each package was offered in direct response to troubled economic conditions during the period in question is not disputed. The corporation’s net income dropped from $1.4 million in 1982 to $4.7 million in 1983; export sales decreased from $17.2 million in 1982 to $8.1 million in 1983; and overall sales plummeted from $104.7 million in 1982 to $71.3 million in 1983. Moreover, plaintiffs have failed to offer direct or circumstantial evidence that any of the packages was actually intended to be a “scheme, plan, stratagem, or artifice of evasion.” McMann at 203, 98 S.Ct. at 450. Although each of the five plaintiffs have testified that he or she felt coerced into accepting the package, or that he or she believed the package was involuntary, these bare allegations are not reinforced by plaintiffs’ own testimony, or any of the other evidence produced at trial. In fact, the allegations are directly at odds with the particular circumstances and events about which plaintiffs testified. In other respects, these circumstances and events fail as a matter of law to raise an inference of subterfuge. Plaintiff Riggie testified that he was told several times by corporate officers that they were pleased with his work. When offered the first early retirement package, Riggie contacted his supervisors to determine whether he should accept the package. Riggie was concerned that he could not get a guarantee that he would not be laid off if he refused the package. Riggie did not like the prospect of early retirement because he had hoped to work until age 65. He was nearly 64 when he was offered the package. Riggie was concerned about the benefits he was offered because he needed to pay for his son’s college education. He was also concerned about a reduction in Social Security benefits. Due to the layoffs that were being implemented, Riggie did not believe that con-timing to work was reasonable. After consulting his wife and family, he concluded that continuing to work was not worth the grief and stress of fearing layoff, and he decided to accept early retirement. Riggie testified that the choice to retire was his own, and that it was voluntary, although he said there were unspecified “extraneous circumstances” involved. Riggie testified that no one indicated to him that he would be laid off if he refused early retirement. In fact, one of defendant’s supervisory personnel, Mr. Leoeswick, told Riggie that he did not believe Riggie would be laid off if he refused. Riggie accepted early retirement because he thought it was better than the prospect of possible layoff with no benefits. Plaintiff Andrews testified that she was concerned that the second early retirement package would result in a reduction of benefits. She requested part-time employment, but was refused. She testified that no one ever discussed age with her. She asked for a guarantee that she would not be laid off if she refused the package, but did not receive a guarantee. Mr. Sweeney told her that he was satisfied with her work and even hoped that she would continue working, but he could not predict the future and guarantee her a position if she refused the package. No one ever indicated to her that she would be terminated if she refused the package. Furthermore, she testified that she knew of no one who had been terminated after refusing to accept early retirement. Andrews took a copy of a letter from Sweeney’s files. The letter indicated that Kenneth Heim was being offered a retirement option that differed from hers. She was displeased that she did not receive a “special deal” like the one offered to Heim. However, she accepted the offer essentially because she felt it was a guarantee. Plaintiff Kennedy testified that she would have liked to work until age 62 or 65. She recalled no layoffs in her office. Kennedy wanted a reassurance from her supervisors that she would not be laid off if she refused the second early retirement package. She received no such guarantee. Company President Ladds told her that he was satisfied with her work, but was reluctant to speak further or provide any advice. She also testified that she was aware of a “special deal” offered to Heim. She discussed the package with her husband, her family, and fellow employees. She recalled that many employees age 40 or over remained with the company despite the layoffs. She testified that she accepted the package because her husband was disabled, and she wanted a guaranteed source of income. Plaintiff Salefske testified that he had hoped to work until age 65. He had the impression that he would not have a job if he refused the offer of enhanced early severance, but he did not specify why. He was age 57 during the relevant period and was therefore not qualified for either of the early retirement packages. He admitted that he was not eligible for either of the voluntary early retirement packages because he was too young. He was concerned that he could not obtain a guarantee that he would not be laid off if he continued to work. In fact, Chrzanowski told him that even Chrzanowski was concerned about being laid off. Nevertheless, Salefske did not say that this pressured him into accepting voluntary enhanced early severance. Salefske chose enhanced early severance because his mother was 90 years old, and there was too much work to do for his wife. Plaintiff Wik testified that he was never reprimanded for his job performance. Overall, he was treated well by the company, and was never treated unfairly on the basis of his age. He was not eligible for the first early retirement package because he was too young. Because he accepted the voluntary early severance package, he was not eligible for the second early retirement package offered in April 1983. Nevertheless, after Wik sent a letter to Stone indicating that he would have been happy to have retired early under the first early retirement package, the benefits under the second early retirement package were offered to him, and he accepted them. Wik testified that he asked Chrzanowski whether he would be laid off, and Chrzanowski said that he himself feared being laid off. Grant asked Wik whether he had heard of anyone being laid off. Nevertheless, Wik understood these comments not 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 84. 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 ease 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 Jánuary 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 ease 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: [T]he appropriate question in early retirement cases [is] whether the existing conditions (ignoring the offer of early retirement) violate the ADEA.... % # % }|{ ifs ---- If the [defendant]' could have discharged them lawfully — perhaps because business had turned sour, and [the plaintiffs] were not selling enough to cover their wage — then the fact that it may have discharged them “constructively” instead would be unimportant. Id. at 829. Thus, in Henn, the court determined that summary judgment for the defendant employer was warranted where “[t]he record contained] extensive admissions by the plaintiffs [indicating] that any threats made to these plaintiffs while they were considering the offer were no greater than justified by their lack of sales.” Id. at 830. Moreover, the court explained, “The reasonable inferences-from this record would not allow a jury to infer that the plaintiffs would have been fired (in violation of the ADEA) had they turned down the offer of early retirement, and without such a constructive discharge they cannot undo their choice to retire.” Id. Similarly, in Gray v. York Newspapers, Inc., 957 F.2d 1070 (3d Cir.1992), the court held that the record did not support plaintiffs’ unsubstantiated claims of constructive discharge. The court explained that “there is nothing to indicate that [plaintiff] would have been fired had [she] not chosen to retire and accept the special [early retirement] payment [citation omitted]____ Moreover, [defendant] was undergoing a restructuring in which many of its reporters were to be reassigned. The ADEA must not be permitted to become a mechanism to inhibit ordinary managerial decisions.” Id. at 1082. The court also wrote: We recognize that [plaintiff] probably did perceive that the new management was less affable than that to which she had been accustomed, and we may assume that she subjectively believed that continued employment would have been uncomfortable and that she would have been demoted or terminated at some point in the future. However, as aptly stated by the Court of Appeals for the Fourth Circuit: “the law does not permit an employee’s subjective perceptions to govern a claim of constructive discharge. Every job has its frustrations, challenges and disappointments; these inhere in the nature of work. An employee is protected from a calculated effort to pressure h[er] into resignation through the imposition of unreasonably harsh condition, in excess of those faced by h[er] co-workers. [Sh]e is not, however, guaranteed a working environment free from stress----” Id. at 1083, quoting Bistow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.1985), cert. denied, 475 U.S. 1082, 106 S.Ct. 1461, 89 L.Ed.2d 718 (1986) (emphasis added). See also Karlen v. City Colleges of Chicago, 837 F.2d 314, 317 (7th Cir.), cert. denied, 486 U.S. 1044, 108 S.Ct. 2038, 100 L.Ed.2d 622 (1988), holding that “a worker who elects early retirement cannot turn around and sue his employer unless he can show that he was forced to take early retirement by an explicit or implicit threat to fire (or otherwise punish) him because of his age if he did not.” (emphasis added), citing Henn, 819 F.2d 824. This line of cases directly refutes the argument raised by plaintiffs’ counsel during oral argument that an early retirement or enhanced severance package would violate the ADEA if an employee who refused the package faced termination for any reasonnot just a discriminatory reason. See also Mitchell v. Mobil Oil Corp., 896 F.2d 463 (10th Cir.), cert. denied, 498 U.S. 898, 111 S.Ct. 252, 112 L.Ed.2d 210 (1990), holding: An employee who claims that an offer of early retirement constitutes age discrimination by constructive discharge can meet this burden by demonstrating that the offer ‘sufficiently alters the status quo that each choice facing the employee makes him worse off and that if he refuses the offer and decides to stay, his employer will treat him less favorably than other employees because of his age. Id. at 467 (emphasis added), quoting Bodnar, 843 F.2d at 193. In Bodnar, cited above, the Fifth Circuit addressed a situation where early retirement offers were made against the backdrop of layoffs. On September 28, 1983 the defendant corporation announced to all employees that it would be embarking on a dramatic cost reduction program, which would include a reduction in salary costs by ten to fifteen percent through normal and early retirement, as well as a reorganization to eliminate jobs. Twenty-eight employees were offered the early retirement program, on September 27 and 28, 1983. The program was not offered to certain employees deemed essential to the company. The offerees were given fifteen days to consider the package. A variable bonus of up to $20,000.00 was the incentive for early retirement. Eventually 21 of the 27 offerees accepted the package. Those who refused the package were not thereafter terminated by the defendant. The plaintiffs in Bodnar alleged that they had been constructively discharged by the corporation. The claimed that they had been told they would not receive any benefits if they refused the plan and were later terminated by layoff. They were explicitly told that layoffs would follow. Requests for additional time to consider the offer beyond the fifteen day period were denied. Id. at 192. The Fifth Circuit upheld an award of summary judgment for the defendant. Most importantly, the court explained, “Of course, no individual employee or employee group may claim constructive discharge where all employees are subject to the same working conditions.” Id. at 193, citing Vaughn v. Pool Offshore Co., 683 F.2d 922, 926 (5th Cir.1982). Despite the fact that the employees were told of impending layoffs, the court held: ... the risk that their jobs might be eliminated because of economic pressure on the company [is] insufficient to suggest age discrimination---- Appellants’ risk, if they stayed on, would be shared by all remaining employees of Synpol. Compare Vaughn v. Pool Offshore, supra. It is thus fair here, as in Henn, to say that the [early retirement plan] afforded Appellants a means to mitigate that risk which was not available to other employees. Id. at 194. In addition, the court determined that fifteen days was adequate time to consider the offer, and that plaintiffs did, in fact, consult with others and examine their options. Plaintiffs’ testimony is essentially that they would have wished to continue working until normal retirement age. Most were dissatisfied with the reduction in monthly benefits that would result from early retirement or early severance. Most importantly, they believe they were pressured into accepting these options because they were not provided a guarantee that they would not be laid off if they refused. In fact, the evidence shows that those who did refuse these packages were not thereafter laid off, and plaintiff Riggie was told by supervisory personnel that he was not likely to be terminated. All in all, plaintiffs feared that they would be returned to the pool of employees who would be subject to layoff. Nonetheless, there is no evidence that layoffs would have been made on the basis of age, or in retaliation for refusing early retirement or early severance. Any comments made to the plaintiffs regarding the possibility of layoff were explained by plaintiffs themselves not as threats, but as refusals to guarantee continued employment. The authority discussed above therefore entitles defendant to judgment as a matter of law on plaintiffs’ disparate impact claim, and on the individual claims of the five employees discussed above. In Henn, the evidence showed that any threats made to the plaintiffs were no harsher than were justified by the plaintiffs’ lack of sales. Similarly, Columbus McKinnon’s refusal to guarantee continued employment was justified by business conditions and the likelihood of company-wide layoffs — layoffs that impacted workers age 40 and over less severely than younger workers. As in Gray, there is nothing to indicate that plaintiffs would have been peculiarly susceptible to layoff if they refused early retirement or enhanced severance. They simply would have shared the uncertainty of younger employees, and therefore were not subjected to conditions “in excess of those faced by [their] co-workers.” Gray, 957 F.2d at 1083, quoting Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.1985), cert. denied, 475 U.S. 1082, 106 S.Ct. 1461, 89 L.Ed.2d 718 (1986). Although they may have feared retaliation, their subjective perceptions are not relevant to the issue of whether defendants discriminated against them on the basis of their age. Plaintiffs have utterly failed to raise an inference that they were “forced to take early retirement [or enhanced severance] by an explicit or implicit threat to fire (or otherwise punish) them because of [their] age if [they] did not.” Karlen, 837 F.2d at 317, citing Henn, 819 F.2d at 824. The status quo at Columbus McKinnon was uncertainty due to the risk of layoff. The company offered plaintiffs “a means to mitigate that risk which was not available to other employees.” Bodnar, 843 F.2d at 194. Plaintiffs accepted defendant’s offers, and have not raised an inference that their acceptance was involuntary or coerced, that they were constructively discharged, or that the packages were subterfuges to evade the purposes of the ADEA. Therefore, they may not be considered in the statistics to reach a finding of disparate impact. When these employees are not considered in the pool of terminated employees, no disparate impact is evident. Therefore, judgment as a matter of law is awarded to defendant on plaintiffs’ disparate impact claim. Likewise, judgment is awarded to defendant on the individual claims of plaintiffs Riggie, Andrews, Kennedy, Salefske, and Wik. Because these plaintiffs have failed to raise an inference of subterfuge, involuntariness, coercion, or constructive discharge, the early retiremen