Flavel v. Svedala Industries, Inc. (868 F. Supp. 1422, 1994)

DECISION AND ORDER

WARREN, District Judge.

Before the Court are the defendants’ Motions for Summary Judgment as to (1) the Age Discrimination Claim of Plaintiff Robert Van Dyke, (2) the Age Discrimination Claims of Plaintiffs Ronald Weiss, Malcolm Flavel and Richard Spoonamore, and (3) those Plaintiffs Alleging Constructive Discharge— Byron Smay, William Meagher, Robert Isferding, Robert Jones, Major Coxhill, and James Conradt. For the following reasons, these motions are denied.

I. FINDINGS OF FACT

A. Plaintiffs Ronald Weiss, Malcolm Flavel, and Richard Spoonamore:

The Appleton operation of defendant Svedala Industries, Inc. (“SI”) was responsible for the design, engineering, manufacturing and marketing of crushing equipment and screens. (Def.Proposed Findings of Fact ¶ 1.) Crushing equipment takes large mined rocks, some up to eight feet in diameter, and crushes them into small pieces; screens are then used to segregate rock particles by size. (Id.)

In April of 1989, William Farnsworth, who had been General Manager of the Appleton facility for many years, retired. (Id. at ¶ 2.) Mr. Farnsworth was replaced on November 15, 1989 by William Guernsey, who had been General Manager of Consolidated Diesel, a joint venture between Cummins Engine Company and J.I. Case. (Id. at ¶3.)

1. Ronald Weiss:

When Mr. Guernsey interviewed for the general manager position with officers of Svedala Industri A.B. (“SIAB”), Si’s Swedish parent corporation, various shortcomings of the Appleton management team were discussed, including the performance of plaintiff Ronald Weiss, Appleton’s Manager of Manufacturing. (Pl.Resp. to DefiProposed Findings of Fact ¶¶ 46-47.) Mr. Weiss had started with Si’s predecessor, Allis-Chalmers, in 1972, and was employed as the Manager of Manufacturing at Appleton since 1981. (DefiProposed Findings of Fact ¶ 8.) Each written performance review prepared by Mr. Farnsworth for the five years before Mr. Guernsey was hired rated Mr. Weiss at the second from the top of six rating levels; none mentioned any “improvement needs,” and all listed “upper management” or “general management” as Mr. Weiss’ “long range career objectives.” (Pl.Resp. to Def.Proposed Findings of Fact ¶ 2.) Mr. Weiss received favorable annual performance appraisals every year until 1990; it is disputed whether Mr. Farnsworth ever expressed dissatisfaction to anyone about his performance. (Id. at ¶¶ 4-6.) Mr. Farnsworth nominated Mr. Weiss to attend the personnel development center to be conducted by SIAB at Nordic Hills Training Center; Mr. Weiss and all other Appleton nominees over forty (40) years of age were rejected, and only the youngest, Pat Quinn — then age thirty-eight (38) — was invited to attend. (Id. at ¶¶ 39-40.) Mr. Farnsworth also recommended Mr. Weiss, along with Jim Gregor or Hugh Foy, as his replacement. (Id. at ¶ 38.) The 1989 performance review for Mr. Quinn describes him as a “solid young manager with very high potential,” and the 1989 performance review for Mr. Gregor, Appleton’s Manager of Sales, lists the “need to develop young generation of salesmen & mgt. candidates” as his improvement needs; the progress review for Mr. Weiss dated February 8, 1990 dropped him from a near-top ranking to the bottom. (Id. at ¶ 50.)

According to the defendants, Mr. Guernsey, upon arriving at Appleton, concluded that costs relating to quality control, purchasing, and inventory were too high, and that plant safety was a problem'. (Def.Proposed Findings of Fact ¶¶ 10-13; 15, 17). Mr. Guernsey believed that Mr. Weiss did not have in place an adequate safety improvement program, and held him responsible for cost problems. (Id. at ¶¶ 14, 16 — 20.) Under Mr. Weiss’ management, the Appleton facility had in place a management safety council, a safety brigade, safety tours, weekly safety programs, safety posters, periodic safety contests, safety awards, and a full-time nurse. (Pl.Resp. to Def.Proposed Findings of Fact ¶ 21.) The plaintiffs also reference Mr. Guernsey’s November 8, 1991 deposition testimony, where he stated that the Appleton facility “had a safety record that was average in the industry,” and the fact that the manufacturing operation at Appleton under Mr. Weiss’ supervision had been rated as outstanding during the last audit of the program in 1987-88. (Id. at ¶¶ 12, 14.) Appleton statistics on safety under Mr. Weiss’ management were within OSHA requirements. (Id. at ¶ 22.)

The defendants indicate that Mr. Guernsey “is a proponent of the managerial philosophy known as Total Quality Management (“TQM”),” which espouses teamwork, accountability, and quantifiable performance goals and objectives. (Def.Proposed Findings of Fact ¶¶ 4-5). The plaintiffs indicate that, in connection with the sale of the mineral systems division of Allis-Chalmers, John Plainer, Si’s North American President, eliminated the total quality assurance department at Appleton as a cost-savings measure, reassigning TQM to the engineering department, and that Mr. Weiss preserved as much of the TQM program in manufacturing as he could. (PLResp. to Def.Proposed Findings of Fact ¶¶ 15-16.) According to the plaintiffs, Mr. Guernsey never discussed TQM or the safety program at Appleton with Mr. Weiss. (Id. at ¶¶ 17-20.)

During the period preceding Mr. Guernsey’s arrival at Applet on, Mr. Weiss was working on the largest cost reduction plan that had ever been approved during the eighteen years he had been with the company; he had also received prior approval before traveling to China in October of 1989 regarding a sourcing castings project. (Id. at ¶¶ 28-32.) Inventory levels at Appleton were not set by the manager of manufacturing operations; instead, a formal master scheduling meeting was held each month involving the general manager and his entire staff, with the former granting final approval for the monthly master schedule, including inventory levels. (Id. at ¶¶ 33-35.) The manufacturing operations at Appleton under Mr. Weiss produced inventory and other products in accordance with the approved master schedule. (Id. at ¶ 36.)

In December of 1989, one month after he had replaced Mr. Farnsworth, Mr. Guernsey decided to remove Mr. Weiss as Manager of Manufacturing. (Def.Proposed Findings of Fact ¶¶ 21, 25.) Mr. Guernsey replaced Mr. Weiss with Gerald Dircks, a forty-nine (49) year old former colleague at Consolidated Diesel familiar with TQM principles. (Id. at ¶¶ 22-24, 28-29.) Mr. Dircks was interviewed in December, and his hiring was approved by Mr. Planter and Swedish parent manager Jan Knuttson before Christmas. (Pl.Resp. to Def.Proposed Findings of Fact ¶ 41.) Mr. Guernsey announced Mr. Weiss’ impending termination to Mr. Gregor and other SI managers; according to Mr. Gregor, Mr. Guernsey stated that “there could be some legal implications involved in this so none of you is to discuss any of this with anybody.” (Id. at ¶ 42.) According to Mr. Weiss, Mr. Guernsey stated to him in a January of 1990 conversation that “the problem with Appleton is that we have too many old people in their jobs too long.” (Id. at ¶ 54.) While he had initially considered placing Mr. Weiss in another position, Mr. Guernsey terminated his employment on February 12, 1990. (Def.Proposed Findings of Fact ¶¶ 26-28.) Mr. Weiss was fifty-four (54) years old when terminated. (Id. at ¶ 28.) His final rate card, signed by Mr. Guernsey, has the “retire” box marked as the reason for “separation from force,” rather than “term.” or “lay off.” (PLResp. to Def.Proposed Findings of Fact ¶ 7.)

On November 2, 1990, Mr. Weiss filed an age discrimination charge with the Wisconsin Department of Industry, Labor and Human Relations (“DILHR”). (Id. at ¶ 8.) On November 16, 1990, SI, through its General Counsel John Fons, responded to Mr. Weiss’ charge, stating that:

“After his start with Boliden Allis, Inc., Mr. Guernsey reviewed the past and current performance of each manager and, based on Mr. Weiss’s performance and willingness to be a team player, determined that Mr. Weiss would not be able to meet his expectations. Rather than insult Mr. Weiss by demoting him, Mr. Guernsey offered Mr. Weiss a severance package which included salary continuation to age 55, enabling Mr. Weiss to then qualify for retiree health benefits.”

(Id. at ¶ 9.) On January 9, 1991, DILHR made a probable cause finding in favor of Mr. Weiss. (Id. at ¶ 10.)

2. Malcolm Flavel:

Before SI acquired the Appleton unit out of the Allis-Chalmers bankruptcy on January 1, 1988, plaintiff Malcolm Flavel participated in the international marketing of Appleton products, working extensively in the Far East, and was involved in comminution research, the study of how rocks and minerals break up. (Def.Proposed Findings of Fact ¶¶ 30-31.) Shortly before the acquisition, Mr. Plainer had rated Mr. Flavel first among the fifteen (15) key employees at Appleton, stating that he “[did not] think there is any way [SI] could replace his knowledge.” (PL Resp. to Def.Proposed Findings of Fact ¶¶ 63-64.) Mr. Flavel had received significant awards for his work and held mining equipment patents. (Id. at ¶ 65.) On October 17, 1990, Mr. Guernsey terminated Mr. Flavel; Mr. Flavel was fifty-four (54) years of age. (Id. at ¶ 40; PLResp. to Def.Proposed Findings of Fact ¶ 61.) Mr. Quinn, Mr. Flavel’s supervisor at the time of his termination, noted that he “worked hard, was very dedicated and had no performance problems.” (Id. at ¶ 82.) On September 30, 1992, in response to an administrative charge brought by Mr. Flavel, the EEOC issued a finding of discrimination against SI. (Id. at ¶ 57.)

The parties disagree as to the circumstances surrounding Mr. Flavel’s dismissal. According to the defendants, Mineo International A.B. (“Mineo”) was created as the international sales arm for SIAB, representing its products in areas where the latter had no sales or marketing companies. (DefiProposed Findings of Fact ¶33.) They claim that Mineo took over Mr. Flavel’s responsibilities for marketing Appleton products in the Far East and the Pacific Rim. (Id. at ¶34.) They also indicate that, in late 1989 and early 1990, funding for comminution research at Appleton was eliminated. (Id. at ¶35.) Pursuant to these changes, Mineo purportedly agreed to split Mr. Flavel’s time and expenses with Appleton. (Id. at ¶¶ 36-37.) According to the defendants, Mr. Flavel introduced Peter Kohle, president of Mineo, and Lars Strom, another Mineo employee, to various Pacific Rim contacts; in the fall of 1990, however, Mineo discontinued funding for Mr. Flavel’s position. (Id. at ¶¶ 38-39.) The defendants indicate that, since Mr. Flavel’s termination, no one from Appleton has been employed primarily to travel to Asia to sell Appleton products or to engage in comminution research and development. (Id. at ¶ 41.)

According to the plaintiffs, when SI initially responded through then Human Resources Manager Paul Stelter to the administrative charge that Mr. Flavel filed with the EEOC, no mention was made of international sales or Mineo; instead, SI stated:

“Specifically, Mr. Flavel was employed by the Allis-Chalmers Corporation (A-C) as a Consultant, Comminution Systems. His was a “one of a kind” research oriented position which, simply put, studied how rocks fractured. In 1988 certain assets of A-C were purchased, including the Appleton operation which produces rock crushing equipment and remains part of an international corporation. Since that time, the basic research and development of our rock crushing machinery has been done in Sweden. Over the last several years it became apparent that we had no work for Mr. Flavel, within his area of expertise.”

(Pl.Resp. to Def.Proposed Findings of Fact ¶¶ 56, 67.) The plaintiffs indicate that Mr. Flavel’s immediate supervisor when he was terminated was Mr. Quinn, who told Mr. Weiss in late 1989 that Ted Thomas, then age thirty-three (33), would be given additional responsibility in the comminution area. (Id. at ¶¶ 66, 70.)

Mr. Quinn also purportedly admitted that the departure of another comminution consultant, Hugh Rimmer, in May of 1990 had created an open position for an application engineer at the company. (Id. at ¶¶ 58-59.) According to the plaintiffs, Mr. Quinn admitted that Mr. Flavel was fully qualified to perform such duties; however, instead of offering him the position, SI first offered the job to Joe Pirozzoli, who was younger than Mr. Flavel, and then hired David Urbanek, age twenty-eight (28), on April 1, 1991. (Id. at ¶¶ 60-62.) The plaintiffs also indicate that, since Mr. Flavel’s termination, Mr. Thomas has traveled to China in connection with sales at the Anshan mining project, on which Mr. Flavel had previously been working, and to other countries. (Id. at ¶ 69.)

Finally, the plaintiffs note that during 1990, when Mineo had supposedly rejected Mr. Flavel as a participant in its international sales efforts, it was advertising for an open sales position for Latin America; the job requirements stated that applicants be “between 30 and 40, with a background in business and engineering, preferably with a degree from a college or institute of technology.” (Id. at ¶¶ 71-72.) Mr. Flavel’s international sales experience included Latin America; however, Mineo hired Ed Pronk, then age thirty-three (33). (Id. at ¶¶ 73-75.) In making this decision, the plaintiffs claim that Mr. Stelter and Mr. Quinn were influenced by a fax received from Mineo which stated that the ideal candidate’s age would be in the 30’s; in a June 20, 1990 letter from Mr. Stelter to Mr. Guernsey recommending a termination arrangement for Mr. Flavel, Mr. Stelter noted in the first paragraph that “Mai was born May 8, 1936 and is 54 years old.” (Id. at ¶ 79.)

3. Richard Spoonamore:

Plaintiff Richard Spoonamore, whose date of birth is May 11, 1935, was hired by Allis-Chalmers, Si’s predecessor, in July of 1979 as a field service representative. (Def.Proposed Findings of Fact ¶42; Pl.Resp. to DefProposed Findings of Fact ¶ 84.) Mr. Spoonamore was based in Tucson, Arizona, and travelled both internationally and domestically approximately sixty (60) percent of the time. (Id. at ¶ 85.) Mr. Spoonamore continued in this capacity when SI purchased the Appleton business on January 1, 1988, reporting to James Gregor, national sales manager for the Appleton facility. (Id. at ¶ 86.) Mr. Spoonamore had technical, sales, and managerial experience with other firms involved in the mining and construction industries, had a bachelor of science degree in mechanical engineering, and had received a certificate in quality control courses from the American Society of Quality Control. (Id. at ¶ 92.)

In late March or early April of 1990, at the recommendation of Mr. Gregor, Mr. Spoonamore was promoted to manager of the field service department at Appleton; he relocated to Appleton while his family remained in Arizona, and continued to report to Mr. Gregor. (Id. at ¶¶ 87-88, 93; Def.Proposed Findings of Fact ¶ 43.) While unhappy with Si’s first-year salary offer of $43,200, Mr. Spoonamore agreed to accept the position, noting his desire to have his salary reviewed within one year. (Pl.Resp. to Def.Proposed Findings of Fact ¶¶ 90-91.)

One of Mr. Spoonamore’s duties as manager of field service was to coordinate the activities of the field service representatives. (Id. at ¶¶ 94-95.) According to plaintiffs, however, his ability to perform this task was “seriously undermined” by Mr. Guernsey, Mr. Quinn, and Mr. Dircks, who “routinely” contacted field service representatives directly, ordered them to perform field service work without notifying Mr. Spoonamore, and “verbally abused [Mr. Spoonamore] in a very severe fashion in front of others.” (Id. at ¶¶ 95-97.) The plaintiffs also indicate that Mr. Spoonamore’s attempts to hire a Warranty Administrator and to obtain a computer system for his department to improve performance were “denied without any explanation”; his request for a training room was also delayed. (Id. at ¶¶ 98-104.) Mr. Spoonamore also recommended that additional field service representatives be hired to cover increasing workloads; he was told, however, that he could not hire any additional persons because they “weren’t in the budget.” (Id. at ¶ 105.)

The plaintiffs indicate that, within several months after coming to Appleton, Mr. Spoonamore, through Mr. Gregor and other employees, discovered that Mr. Guernsey was upset with Mr. Gregor for promoting him because he was “too old,” “younger people [ ] could take his job,” and “he had this young, professional-type guy waiting in the wings who could just step right in and hit the road running.” (Id. at ¶¶ 107-109.) Later in 1990, Mr. Gregor told Mr. Spoonamore that, despite his satisfaction with Mr. Spoonamore’s performance, Mr. Guernsey had told him that Joe Quinn and William Meagher, two salesmen for the Appleton business, were also “too old,” that he had “lumped [them] all together,” and that Mr. Gregor had to “get rid of you guys.” (Id. at ¶¶ 110-113.) In August of 1990, Appleton parts manager Gary Wichtel purportedly told Mr. Spoonamore that Mr. Guernsey was not happy with him and other field representatives because of their age, and that he was glad that the people in the parts department were young. (Id. at ¶¶ 114-115.)

In 1990, Appleton employees, including managers, were scheduled to attend classes in TQM principles taught at Fox Valley Institute, located three miles from Si’s Appleton facility. (Def.Proposed Findings of Fact ¶ 44.) According to the defendants, Mr. Spoonamore was critical of TQM philosophy, calling it “hogwash,” as well as the TQM consultant retained to teach the Fox Valley classes, and his attendance at the classes was “sporadic.” (Id. at ¶¶ 45-47.) The plaintiffs, however, indicate that Mr. Spoonamore merely expressed doubts about the applicability of certain specific management strategies to his small department, that he is conversant with TQM principles and believes they can be effective in assisting businesses like Appleton, and that Mr. Guernsey never discussed TQM principles with Mr. Spoonamore. (Pl.Resp. to Def.Proposed Findings of Fact ¶¶ 173, 175-177.) Moreover, they claim that his “sporadic” attendance only resulted from instructions by Mr. Guernsey and Mr. Stelter that business service, including answering phones, should take priority over course attendance. (Id. at ¶ 178.)

In late December of 1990 or early January of 1991, Mr. Spoonamore purportedly recommended to Mr. Gregor that each of the field service representatives in his department receive substantial raises in their annual salaries; at that time, two were under age forty (40), Steve Cadieux and Ron Monfils, and two were over age forty (40), Scott Hiller and A1 Peterson. (Id. at ¶ 119.) Mr. Guernsey endorsed Mr. Spoonamore’s recommendation for the two younger employees, approving substantial raises, but overruled his recommendation as to the two older employees, approving only token raises. (Id.) Mr. Peterson had begun employment with SI five years after Mr. Monfils and three years after Mr. Cadieux; in 1990, Mr. Hiller received a substantially higher salary than the others, and in 1991 Mr. Peterson received a substantial raise. (Def.Reply to Pl.Resp. to Def.Proposed Findings of Fact ¶ 119.)

Mr. Spoonamore expected to receive a pay increase effective April 1, 1991; when he received his April 15, 1991 paycheck, however, he realized that Mr. Guernsey had not approved a raise in salary. (Def.Proposed Findings of Fact ¶ 48; Pl.Resp. to Def.Proposed Findings of Fact ¶¶ 120, 125.) Mr. Guernsey had never conducted a performance review of Mr. Spoonamore, articulated to Mr. Spoonamore concerns about his performance, or provided written notice of alleged performance deficiencies. (Id. at ¶ 126.) The defendants attribute the raise denial to Mr. Spoonamore’s “resistance to Guernsey’s TQM management philosophy, as well as other problems Guernsey perceived with his performance.” (Def.Proposed Findings of Fact ¶ 48.) On April 16, 1991, Mr. Spoonamore hand-delivered to Mr. Gregor a letter of resignation from his management position; in his letter and in a conversation with Mr. Gregor, he noted that he hoped to return to Tucson to “serve [the company] well in the Field Service Representative function,” that he would assist his managerial successor during transition, and that he was upset over being denied a raise despite his satisfactory performance. (Pl.Resp. to Def.Proposed Findings of Fact ¶¶ 121-128.) Mr. Gregor and his immediate supervisor, Joe Valitchka, had a conversation regarding Mr. Spoonamore’s desired raise; in late April or early May of 1991, Mr. Spoonamore also spoke with Mr. Valitchka, telling him that he would have to return to Arizona if his salary in Appleton were not adjusted. (Id. at ¶¶ 124, 127; Def.Proposed Findings of Fact ¶¶ 50-51.)

On Memorial Day weekend of 1991, Mr. Spoonamore packed up his personal belongings and moved from Appleton to Tucson; it is not clear whether he had previously notified Mr. Gregor of his intention to do so. (Id. at ¶¶ 52-53; Pl.Resp. to Def.Proposed Findings of Fact ¶¶ 130-131; Def.Reply to Pl.Resp. to Def.Proposed Findings of Fact ¶ 130.) The following Tuesday, Mr. Gregor called Mr. Spoonamore in Tucson, and Mr. Spoonamore agreed to return to Appleton, at Si’s expense, to assist in the transfer of his former job as manager of field service; it is not clear whether Mr. Spoonamore was offered a position as a field representative. (Def.Proposed Findings of Fact ¶¶ 54-57; PL Resp. to Def.Proposed Findings of Fact ¶¶ 132-135.) During the next week in Appleton, at the request of Mr. Valitchka, Mr. Spoonamore compiled information relating to the costs to be incurred in “starting up” unused equipment sold by SI several years earlier to a Mexican customer; some time earlier, he had estimated the total start-up cost at $50,000, or twice that originally anticipated by SI. (Id. at ¶¶ 136-144; Def.Proposed Findings of Fact ¶¶ 58-68.) Mr. Guernsey and Mr. Spoonamore had met in January or February of 1991 about this estimate; while the defendants claim that Mr. Guernsey limited Mr. Spoonamore to spending $40,000 on such costs, (Id. at ¶¶ 67-68), the plaintiffs indicate that Mr. Spoonamore was informed by Mr. Gregor that Mr. Guernsey authorized completion of the start-up, without use of Appleton employees, even if expenses approached $70,000. (Pl.Resp. to Def.Proposed Findings of Fact ¶¶ 145-148.) The start-up of the equipment in Mexico was completed by Memorial Day of 1991 at a cost of over $67,000. (Id. at ¶¶ 153-154.)

Before completion of the start-up project, Mr. Spoonamore sent a letter to the Mexican customer advising them of the updated cost figures, acknowledging the contract terms calling for $25,260 in start-up charges, and indicating that he would advise them if “costs exceed[ed] the contract figure so [they] will know of any back charges, to expect from the office.” (Id. at ¶¶ 151-152.) In early June of 1991, after Mr. Spoonamore had returned to Appleton, Mr. Guernsey was informed of the total actual cost expended on the project, approximately $67,000; the defendants indicate that Mr. Guernsey was “extremely upset at Spoonamore’s disobeying his directive on the costs relating to the” project. (Def.Proposed Findings of Fact ¶ 71.) Mr. Gregor, however, testified that he “emphatically” believes that Mr. Spoonamore did not “go beyond his authority” in connection with the project. (Pl.Resp. to Def.Proposed Findings of Fact ¶ 149.) SI sought cost recovery from the equipment purchaser; ultimately, the parties reached a $60,000 settlement. (Id. at ¶¶ 154-155.)

On Friday of that week, Mr. Spoonamore’s employment was terminated in a meeting with Mr. Valitchka and Mr. Stelter. (Id. at ¶¶ 157-159; Def.Proposed Findings of Fact ¶ 72.) At this meeting, either Mr. Valitchka or Mr. Stelter stated that Mr. Spoonamore’s “resignation was being accepted”; Mr. Spoonamore insists that he never voluntarily resigned. (Pl.Resp. to Def.Proposed Findings of Fact ¶¶ 159-160, 162-163; Def. Reply to Pl.Resp. to Def.Proposed Findings of Fact ¶ 160.) According to the plaintiffs, at the request of Mr. Valitchka and Mr. Stelter, Mr. Spoonamore granted permission for his briefcase and rented vehicle to be searched before leaving. (Pl.Resp. to Del.Proposed Findings of Fact ¶ 161.) According to the plaintiffs, Mr. Spoonamore was never told that he was being terminated because of his purported resistance to TQM principles espoused by Mr. Guernsey. (Id. at ¶ 174.)

Mr. Spoonamore filed an unemployment compensation claim in Arizona; on February 19, 1992, an Appeals Board of the Arizona Department of Economic Security found that Mr. Spoonamore “did not express an intention to quit working entirely for the company,” and that, when SI told him on May 28, 1991 that “he would be paid field service pay at his old rate, [it] had accepted [his] resignation from the position of manager of field service and had accepted [his] request to be hired as a field service representative.” (Id. at ¶¶ 163-164.) This finding was affirmed on April 20,1992 by the Arizona Appeals Board. (Id. at ¶ 165.) On July 24, 1991, Mr. Spoonamore filed an age discrimination charge with the EEOC, specifically referencing purported ageist statements made by Mr. Guernsey. (Id. at ¶ 182.) In October of 1992, the EEOC issued a Letter of Violation against SI, concluding that they “exercised a preference for younger employees and that preference had its origins with Swedish corporate affiliates,” that Mr. Guernsey had “expressed and exercised a preference regarding the retention and promotion of younger staff,” and that there was “substantial evidence” of a “campaign of harassment of older employees at the Appleton facility.” (Id. at ¶ 184.)

B. Plaintiff Robert Van Dyke-.

The Standard Steel Corporation of Los Angeles, California was acquired by Allis-Chalmers in the early 1970’s and renamed Stansteel. (Def.Proposed Findings of Fact ¶¶ 7-8.) On January 1, 1988, as part of its acquisition of the Milwaukee unit of Allis— Chalmers, SI acquired the Stansteel operation. (Id. at ¶¶ 1-9.) Plaintiff Robert Van Dyke joined Standard Steel in 1966 and performed duties relating to export sales and licensing programs. (Id. at ¶ 10.) At that time, Standard Steel employed approximately 400-500 employees. (Id. at ¶ 11.) Due to declining business, that number decreased to approximately 300^100 by 1977. (Id. at ¶ 12.) In 1977, Mr. Van Dyke, by then the sales administration manager for Stansteel, was terminated as part of a reduction in force caused by the closing of Stansteel’s manufacturing facility; approximately forty (40) people were retained to perform non-manufacturing tasks. (Id. at ¶¶ 13-14.) Mr. Van Dyke was rehired by Stansteel in 1979, and became the on-site manager in 1984; at that time, Stansteel employed approximately thirty (30) people. (Id. at ¶¶ 1, 15-17.) As manager, Mr. Van Dyke was responsible for overseeing the entire business group including engineering, parts sales, quality assuranee, sales, contract administration and field service. {Id. at ¶ 18.)

The Vice-President and General Manager of Si's Milwaukee facility is Dr. Ki Joung. (PLResp. to Def.Proposed Findings of Fact ¶ 7.) Mr. Van Dyke reported directly to Dr. Joung from January 1 to November 30,1988, when he began reporting to Bobby Faulkner, manager of the product and processes area of the “Minerals Systems Company” at the Milwaukee facility. {Id. at ¶ 8.) In November of 1988, a further reduction of the Stan-steel work force took place; the parties dispute whether it resulted from declining sales and whether Mr. Faulkner participated in termination decisions. {Id. at ¶¶ 21-22, 26; Def.Proposed Findings of Fact ¶ 19.) Several employees were discharged and responsibility for purchasing, quality assurance, field service, invoicing, accounting, engineering, parts sales, and contract administration were transferred to Milwaukee. {Id. at ¶ 20; Pl. Resp. to Def.Proposed Findings of Fact ¶ 9.) According to the plaintiffs, Mr. Faulkner assumed responsibility for one of Mr. Van Dyke’s normal managerial duties: resolving holdbacks on certain equipment contracts. {Id. at ¶ 10.) The defendants, however, contend that Mr. Faulkner so acted only after receiving customer complaints and determining that Stansteel’s outstanding holdbacks were inappropriately high. (Def.Proposed Findings of Fact ¶¶ 23-24; Def.Reply to Pl. Resp. to Def.Proposed Findings of Fact ¶ 10.) The plaintiffs indicate that Mr. Van Dyke was not consulted in any way prior to making these changes; according to the defendants, however, Dr. Joung and Mr. Faulkner advised Mr. Van Dyke about these and other concerns throughout 1989. (Def.Proposed Findings of Fact ¶25; PLResp. to Def.Proposed Findings of Fact ¶ 24.) After the November of 1988 reduetion-in-force, six employees remained at Stansteel — Mr. Van Dyke, Ed Simonian, Edward (Craig) Turner, Mary Ham, Bernice Wingerson, and Santiago (Jim) Rodriguez. (Def.Proposed Findings of Fact ¶22.) Stansteel also retained three former employees, Marcus Rouchaud, Roy Heacock, and Warren Vetter, as consultants. (PLResp. to Def.Proposed Findings of Fact ¶ 27.)

According to the defendants, the Stansteel operation “continued to show disappointing results during 1989.” (Def.Proposed Findings of Fact ¶ 26.) Nevertheless, in August of 1989, Mr. Faulkner authorized a 7.1% merit pay increase for Mr. Van Dyke, which was approved in writing by Dr. Joung. (Pl. Resp. to Def.Proposed Findings of Fact ¶ 13.) The defendants claim that, at the end of 1989, Mr. Faulkner and Dr. Joung decided to further consolidate the Stansteel operation with the Milwaukee unit, determining that an on-site manager was not needed at Stansteel because Mr. Faulkner could supervise the operation from Milwaukee. (Def.Proposed Findings of Fact ¶¶ 27-28.) They indicate that this, plus Mr. Faulkner’s concerns about Mr. Van Dyke’s performance, resulted in a decision to terminate Mr. Van Dyke; they claim that his age was never discussed. {Id. at ¶¶ 29-31.) While the plaintiffs indicate that neither Dr. Joung nor Mr. Faulkner had ever questioned Mr. Van Dyke’s performance in any way, the defendants claim that Mr. Faulkner discussed with Mr. Van Dyke his concerns regarding customer complaints and performance. (PLResp. to Def.Proposed Findings of Fact ¶¶ 14, 23, 28; Def.Reply to PLResp. to Def.Proposed Findings of Fact ¶ 28.)

Mr. Van Dyke did not receive any performance appraisals as manager of Stansteel after approximately 1984. (PLResp. to Def.Proposed Findings of Fact ¶ 29.) However, in a confidential memo to Mr. Planter pertaining to incentive compensation for Dr. Joung’s first reports, Dr. Joung placed Mr. Van Dyke ahead of Mr. Faulkner in his list of incentive compensation candidates. {Id. at ¶ 17.)

On January 9, 1990, Mr. Faulkner travelled to Stansteel to terminate Mr. Van Dyke; according to the plaintiffs, he made no mention of any performance problems, instead handing Mr. Van Dyke a termination letter citing restructuring as the cause for elimination of his position. {Id. at ¶¶ 15-16, 32-33, 36.) Mr. Van Dyke’s age was not discussed during the termination meeting. (Def.Proposed Findings of Fact ¶ 35.) Mr. Van Dyke was sixty-one (61) when he was terminated. {Id. at ¶ 37.) The parties agree that it was Dr. Joung’s decision to discharge Mr. Van Dyke. (Id. at ¶ 31; Def.Reply to Pl.Resp. to Def.Proposed Findings of Fact ¶ 31.) After Mr. Van Dyke was terminated, four employees remained at Stansteel — Mr. Simonian, age fifty-five (55); Mr. Turner, age fifty-three (53); Ms. Hamm, age fifty-two (52); and Mr. Winger son, age fifty-three (53). (Pl.Resp. to Def.Proposed Findings of Fact ¶ 38.) Mr. Van Dyke believes that Stansteel should have terminated Mr. Turner in its restructuring, as specific performance deficiencies had been identified regarding Mr. Turner and Mr. Faulkner had been advised by Mr. Van Dyke that he was unhappy with his performance; the defendants, however, stress that Mr. Van Dyke did not “take any action” against Mr. Turner “even though he was his manager for several years.” (Id. at ¶¶ 37-38; Def.Proposed Findings of Fact ¶¶ 3ÍM0.) As of January of 1990, Mr. Faulkner was aware of co-workers’ complaints about Mr. Turner; as part of the February 1991 reduetion-in-force at the Milwaukee facility, Mr. Turner was placed on probation and told that he had to focus on his job duties in order to maintain his employment. (Pl.Resp. to Def.Proposed Findings of Fact ¶¶ 41-42.)

In a set of notes pertaining to the business objectives of the Mineral Systems Company which predated Mr. Van Dyke’s termination, Dr. Joung expressed concern that the engineering and sales personnel at Stansteel were too old. (Id. at ¶ 18.) In a report to the Swedish parent corporation of SI in October of 1989, Dr. Joung noted that “[t]he average age of BA/Milwaukee employees is quite high ... [tjherefore, we initiated a program in 1989, in which the positions vacated by either retirement or departure were filled with younger people as much as possible.” (Id. at ¶ 19.) According to the plaintiffs, Dr. Joung called Mr. Van Dyke from time to time to discuss the age of his staff, which Dr. Joung said was “up in age,” and suggested that Mr. Van Dyke hire younger people to replace Stansteel personnel. (Id. at ¶20.) Mr. Van Dyke also contends that Stansteel had a reasonable backlog of business when he was terminated, and good prospects for future business; the defendants dispute this claim. (Id. at ¶ 25; Def.Reply to Pl.Resp. to Def.Proposed Findings of Fact ¶25.) Mr. Van Dyke believes that he had more experience with Stansteel’s products than Mr. Turner, and that a manager was still needed on site at the Stansteel operation when he was terminated. (Pl.Resp. to Def.Proposed Findings of Fact ¶ 45.)

Mr. Van Dyke never filed an age discrimination charge with the EEOC. (Def.Proposed Findings of Fact ¶ 42.) He did not become involved in this action until he was contacted by the EEOC in late 1993. (Id. at ¶ 43.)

C. Plaintiffs alleging constructive discharge-.

Six plaintiffs allege that they were constructively discharged; Byron Smay, William Meagher, Robert Isferding, Robert Jones, James Conradt, and Major Coxhill. (Def.Proposed Findings of Fact ¶ 1.) Each was employed at the Appleton unit, which was responsible for the design, engineering, manufacturing, and marketing of crushing equipment and screens. (Id. at ¶¶2, 3.)

In their voluminous submissions, the plaintiffs present the following facts as evidence demonstrating a pattern or practice of age discrimination by the defendants. Thomas Older, the president of SIAB, and other Swedish managers have been corporate directors of the defendants since SIAB purchased Allis-Chalmers’ assets in early 1988. (Pl.Resp. to Def.Proposed Findings of Fact ¶ 3.) The interlocking management relationship between SIAB and the Appleton and .Milwaukee units involve direct, frequent and substantive communication between senior Swedish management and senior American management. (Id. at ¶¶ 4, 7.) Business consolidations, staff reorganizations and realignments, business plans and other significant business issues confronting the American subsidiaries are submitted to SIAB for consideration and approval by senior Swedish management. (Id. at ¶ 7.) After the January 1, 1988 acquisition of the solids processing business of Allis-Chalmers, Swedish senior management put in place an annual budget review process, conducted in Sweden, to which each of the general managers for the United States facilities was “summoned to attend.” (Id. at ¶ 5.) On a regular basis, and at least annually, Mr. Guernsey and Dr. Joung submitted detailed business plans or reports for consideration and approval by SIAB. (Id. at ¶ 6.) Mr. Older, Jan Knuttson, and other senior Swedish managers traveled on a regular basis to the United States to discuss business planning issues with American management. (Id. at ¶¶ 6-7.) The Appleton unit submitted detailed financial reports, called “C-Reports,” to SIAB on a monthly basis. (Id. at ¶ 6.)

The parties dispute whether the SIAB’s involvement in the management of the Appleton and Milwaukee units extended to employment policies and decisions, and whether SIAB has been involved in key management and employment policy decisions at the American subsidiaries. (Id. at ¶¶8-9, 12; Def.Reply to Pl.Resp. to Def.Proposed Findings of Fact ¶¶ 8-9, 12.) When Mr. Guernsey was being interviewed in Sweden by Mr. Older and Mr. Knuttson for the general manager position at Appleton, he discussed specific personnel in Appleton, including Mr. Weiss. (PLResp. to Def.Proposed Findings of Fact ¶ 11.) Mr. Planter was also directly involved in employment decisions and in the formulation of employment policies at the American subsidiaries; the parties dispute whether he was aware of and approved of the termination and/or demotion “of numerous senior and mid-level managers both at the Appleton and Milwaukee Units.” (Id. at ¶ 13.) As to the Milwaukee terminations which occurred on February 13, 1991, it was Mr. Planter who first met with Wayne Clark from Clark and Kevin to seek personnel consulting services in connection with the terminations; Mr. Clark’s handwritten notes reflect that.the topic of age was discussed in this meeting. (Id. at ¶ 14.)

According to the plaintiffs, both Dr. Joung and Mr. Soriano, another senior manager at the Milwaukee unit, after returning from a conference for senior managers of SI in Sweden, reported that Swedish management was concerned about the high average age of the workforce at the Milwaukee facility, and wanted action taken to bring in younger workers; Swedish management purportedly stated that the Milwaukee unit had an “age problem.” (Id. at ¶¶ 15-16.) Mr. Soriano also allegedly stated that, while SIAB management believed that Milwaukee had a problem with older workers, it found the “age problem” at Appleton to be even worse. (Id. at ¶ 17.) The written business plan submitted to SIAB by Dr. Joung on October 1, 1988 noted the “high average age” of Si’s employees as a “principle weakness.” (Id. at ¶ 18.) In his annual business plan for 1990-91, which was also submitted to senior management at SIAB, Dr. Joung reported that the average age of employees at the Milwaukee unit was still high and that a program had been initiated to fill positions with younger people, which had decreased the average age of employees. (Id. at ¶¶ 19-20.) On November 3, 1989, in a written response to questions raised by Mr. Older during the budget review process, Dr. Joung noted that the $7,000 annual salary differential between American and Canadian employees was due to “age, experience, and project and process related expertise and experience.” (Id. at ¶ 21.) Mr. Older acknowledges that he and Dr. Joung discussed the “high average age” problem. (Id. at ¶¶ 22-23.)

Plaintiff James Conradt had worked in the human resources area of the Appleton unit for approximately eighteen (18) years and had been the manager of human resources for four years prior to the end of his employment in May of 1990; he observed employment policies and practices at SI in 1989 which, in his opinion, indicated that SI and senior management at the Appleton facility were implementing a policy of age discrimination against older workers. (Id. at ¶¶ 24-26.) Bruce Merten was the manager of human resources for the Milwaukee unit and the manager for human resources at the corporate level for SI in the United States at the time of their acquisition by SIAB. (Id. at ¶¶ 27-29.) On several occasions in or about the spring and summer of 1989, Mr. Conradt and Mr. Merten discussed Si’s employment practices and their mutual concern that, based on a “youth cult” being imposed by SIAB management, SI management favored younger employees and discriminated against older workers. (Id. at ¶¶ 30-33.) Mr. Conradt claims that he was told by Mr. Merten that SI had a policy which favored younger workers and discriminated against older employees. (Id. at ¶ 33.)

When Mr. Farnsworth retired as general manager at Appleton in April of 1989, senior management at SIAB and the American subsidiaries sought a replacement; Mr. Merten indicated “off the record” to Mr. Conradt that a particular applicant had been rejected because he was “too old.” (Id. at ¶¶ 35-36.) Mr. Gregor, age forty-five (45) and the general sales manager for the Appleton unit in 1989, was recommended for the position by Mr. Knuttson. (Id. at ¶¶ 37-39.) Mr. Gregor traveled to Sweden in early March of 1989 to interview with senior executives of SIAB, including the manager for corporate human resources, who told him that SI was “looking for a guy in his late 30’s.” (Id. at ¶¶ 40-41.) Mr. Gregor was also interviewed by Mr. Older, who, inter alia, emphasized the many accomplishments he had achieved at a young age and commented about the young ages of other senior executives at SIAB. (Id. at ¶¶ 44 — 45.) In Mr. Gregor’s opinion, he was not given the promotion because he was viewed as too old. (Id. at ¶ 46.)

Neither Mr. Weiss and Mr. Foy, ages fifty-four (54) and forty-eight (48), respectively, both of whom had been recommended as replacements by Mr. Farnsworth, were promoted to general manager. (Id. at ¶¶ 47-48.) SI retained a professional executive search firm, Erwin & Associates, in conjunction with its search for a new general manager at Appleton; Mr. Planter and Mr. Knuttson met with Ron Erwin, informing him that (1) the Appleton business had been populated by “people who had been in the business 30 years or more, and the message was we need to get new and different thinking and leadership that in looking toward the future that isn’t just a prologue to the past,” and (2) in conducting the general manager search, the managers of the Swedish parent company wanted to avoid “calcified” candidates, which Mr. Erwin considered to mean people who were “resistant to change” or who lacked “adaptability.” (Id. at ¶¶ 49-53.) Mr. Erwin formally recommended ten candidates to Mr. Planter for the position, and his written reports noted each candidate’s age: 51, 49, 44, 49, 42, 39, 39, 45, 42, and 37. (Id. at ¶ 55.) The last candidate, Mr. Guernsey, was hired for the position; while SIAB management received copies of each candidate’s resume, the parties dispute whether senior SIAB managers made the final hiring decision. (Id. at ¶¶ 56-60; Def.Reply to Pl.Resp. to Def.Proposed Findings of Fact ¶ 58.)

Shortly after Mr. Guernsey began employment in early November of 1989, he met with SIAB management to discuss business objectives, planning, personnel issues and related matters. (Pl.Resp. to Def.Proposed Findings of Fact ¶¶ 62-63.) Mr. Guernsey was in regular and direct communication with senior SIAB executives and submitted regular and detailed reports to SIAB regarding the Appleton facility; he also consulted with and reviewed personnel decisions with Mr. Planter. (Id. at ¶¶ 64-65.)

Mr. Conradt claims that, within the first five months of Mr. Guernsey’s tenure, he observed events exhibiting discriminatory policies on the part of SI and the Appleton unit. (Id. at ¶ 66.) In or about the summer of 1989, Mr. Gregor told Mr. Conradt that he had been denied the general manager’s position because he was too old and because SIAB management wanted a younger person. (Id. at ¶ 67.) In or about the fall of 1989, Mr. Conradt was asked by Mr. Merten to calculate the average age of salaried employees at the Appleton facility; Mr. Conradt was concerned that this request was part of an overall program to get rid of older workers. (Id. at ¶ 68.) As he had done in prior years, Mr. Conradt compiled a list of employees sixty (60) years of age or older, which he submitted to Mr. Guernsey in December of 1989. (Id. at ¶¶ 69-71.) After receiving the list, Mr. Guernsey purportedly told Mr. Conradt that “[wje’ve got an awful lot of long service employees. We need to get some young— ah, new blood into the organization.” (Id. at ¶ 73.) In January of 1990, Mr. Guernsey purportedly stated to Mr. Weiss that “[t]he problem with Appleton is that we have too many old people in their jobs too long.” (Id. at ¶ 74.) Mr. Conradt reported Mr. Guernsey’s statements to Mr. Merten, who responded that Mr. Guernsey’s view regarding older employees was standard procedure for SI. (Id. at ¶ 77.)

In December of 1989, SI held a management assessment conference at the Nordic Hills Conference Center near Chicago, Illinois. (Id. at ¶ 78.) In preparation for the conference, SLAB management instructed managers of the manufacturing facilities to select candidates for the conference and to provide Swedish management with biographical information, including age. (Id. at ¶ 79.) Mr. Farnsworth submitted the names of four candidates, including Mr. Weiss and Mr. Foy, and their biographical information; only the youngest candidate, Mr. Quinn, who was in his thirties, was selected to attend by Swedish management. (Id. at ¶¶ 80-81, 83.) The only information submitted to Swedish management was the nominees’ job location, name, present title and age; all those selected to attend were in their thirties and forties, and all candidates in their fifties were rejected. (Id. at ¶82.)

In or about February of 1990, Mr. Conradt became aware that SI intended to terminate Mr. Weiss. (Id. at ¶ 85.) Mr. Conradt felt that Mr. Weiss had been an excellent performer and had not been subject to any negative performance reviews justifying termination. (Id. at ¶ 88.) When Mr. Conradt objected to Mr. Guernsey that Mr. Weiss’ termination would be a mistake, Mr. Guernsey purportedly told him that he had “two choices, [] do as I tell you or there is the door.” (Id. at ¶ 91.) According to Mr. Conradt, he feared that age discrimination would be directed at him for raising such objections, and he felt that he had no choice but to resign. (Id. at ¶¶ 92-93.)

On or about February 8, 1990, Mr. Guernsey conducted his first performance review of Mr. Gregor, establishing written performance objectives including the development of a “young generation of salesmen and manager candidates.” (Id. at ¶¶ 94, 96-99.) During their meeting, Mr. Guernsey told Mr. Gregor that (1) he had calculated the average age of the sales force at Appleton to be 55-56 years old, (2) the average age was too high in his opinion, (3) they needed to hire a younger and more aggressive sales force, (4) the sales staff was “old and stale,” and (5) he was not comfortable working with such an “old” group of employees. (Id. at ¶ 100.) The parties dispute whether Mr. Platner played any role in establishing any performance objectives. (Id. at ¶¶ 95-96; Def.Reply to PI. Resp. to Def.Proposed Findings of Fact ¶¶ 95-96.) Mr. Guernsey purportedly repeated these sentiments to Mr. Gregor in the months following this meeting, informing Mr. Gregor that, if he could not get rid of those people, Mr. Guernsey would instruct Mr. Stelter to do so. (Pl.Resp. to Def.Proposed Findings of Fact ¶¶ 104-106.) On a number of occasions, Mr. Guernsey ordered Mr. Gregor to terminate Mr. Meagher, a salesman in the Florida region who was in his sixties and who Mr. Guernsey referred to as the “old incompetent in Florida”; he wanted to replace Mr. Meagher with some “young blood.” (Id. at ¶ 107.)

In or about July of 1990, Mr. Guernsey conducted a mid-year performance review of Mr. Gregor, reminding him of his performance objective to develop a younger generation of salesmen and management candidates. (Id. at ¶¶ 113-114.) Mr. Gregor objected, telling Mr. Guernsey that, in his opinion, the older salesmen were doing a good job. (Id. at ¶ 127.) During that review, Mr. Guernsey criticized Mr. Gregor’s decision to promote Mr. Spoonamore, noting that he had a better candidate who was a “very young, professional guy.” (Id. at ¶¶ 115-116.) Approximately eleven (11) months later, Mr. Spoonamore was terminated. (Id. at ¶ 151.) As previously discussed, Mr. Guernsey and Mr. Gregor dispute the reasons for Mr. Spoonamore’s termination. (Id. at ¶¶ 152-153.) Mr. Gregor felt that Mr. Guernsey was “fixated” on age as an employment criterion. (Id. at ¶ 117.)

Shortly after starting as sales and marketing manager for the Appleton facility in April of 1991, Mr. Valitchka indicated to Mr. Gregor that Si’s program was to reduce the average age of its sales force by bringing in younger employees. (Id. at ¶¶ 120-123.) That same month, a meeting was held in the engineering conference room with Mr. Guernsey, Mr. Quinn, Mr. Gregor and several other employees. After Mr. Gregor noticed some old pictures of equipment on the wall and stated to Mr. Quinn that “you’ve got some real antiques there,” Mr. Guernsey responded “Oh, I thought you were referring to Pat [Quinn’s] people.” (Id. at ¶ 124.)

After Mr. Quinn, age 39, replaced Mr. Coxhill, age 60, as manager of engineering, Mr. Gregor and other managers observed him verbally abuse, intimidate, unfairly criticize, yell obscenities, and humiliate older workers, including Mr. Flavel, Mr. Isferding, Mr. Jones, and others. (Id. at ¶¶ 132-133.) Several employees, some at senior management positions, complained about the age discrimination and the harassment of older workers that was occurring at Svedala. (Id. at ¶ 134.) Mr. Foy, the controller of the Appleton facility, learned of Mr. Quinn’s behavior and, after discussing it with Mr. Gregor, reported it to Mr. Guernsey. (Id. at ¶¶ 135-136.) Mr. Gregor also complained to Mr. Fons, general counsel for SI, and Mr. Stelter about age discrimination and harassment directed towards him and SI salesmen, including harassment and abuse being carried out by senior management at Appleton, including Mr. Guernsey and Mr. Valitchka. (Id. at ¶¶ 137-138.) After voicing his complaints, Mr. Gregor perceived that discrimination and harassment against him and others intensified. (Id. at ¶ 140.)

Mr. Gregor filed a charge of age discrimination with the EEOC in late June of 1991. (Id. at ¶ 142.) Several days thereafter, he was fired by Mr. Guernsey, who purportedly admitted that he had been terminated for, among other things, filing a discrimination charge. (Id.) After Mr. Gregor was fired, Mr. Valitchka and Mr. Stelter revised the job description for the regional sales representatives, adding new requirements that the sales representatives be physically able to climb into mines and quarries and engage in other similar kinds of physically demanding activities, and that the regional sales manager be in excellent physical condition. (Id. at ¶ 143.) In or about the summer or early fall of 1991, the revised job description for salesmen was sent by Mr. Stelter, at Mr. Valitchka’s instruction, to the physicians for the three oldest sales managers: Mr. Meagher, who underwent quintuple-bypass heart surgery; Mr. Pape, who had leukemia, and Mr. Smay, who had told Mr. Valitchka that he could not travel because he was having surgery; the revised job description was not sent to the doctors of the younger salesmen. (Id. at ¶¶ 144-145, 147; Def.Reply to Pl.Resp. to Def.Proposed Findings of Fact ¶¶ 144-145, 147.) The physicians were asked to submit a report confirming that these employees could meet the physical requirements set forth in the new .job description. (Pl.Resp. to Def.Proposed Findings of Fact at ¶ 144.) The revised job requirements were not included in advertisements for new salesmen. (Id. at ¶ 146.) Mr. Gregor viewed these new physical requirements as part of Si’s program to rid itself of older employees. (Id. at ¶¶ 148-149.)

In or around May of 1990, in response to instructions by Mr. Guernsey, Mr. Coxhill, then the Manager of Engineering at Appleton, compiled an organizational chart for the engineering department at Appleton which included each employee’s name, years of service, date of birth, as well as the average age. (Id. at ¶¶ 160, 162.) At Mr. Guernsey’s instruction, Mr. Coxhill presented this information to Swedish management at the international conference of Svedala engineers and technicians in Brazil later that month. (Id. at ¶¶ 161, 163.) Mr. Coxhill was later terminated and replaced by Mr. Quinn. (Id. at ¶ 165.) Within two (2) years after Mr. Guernsey became general manager of the Appleton unit, at least eleven (11) employees age fifty (50) or older were no longer employed: Mr. Weiss, age 54; Mr. Flavel, age 54; Mr. Spoonamore, age 56; Mr. Gregor, age 47; Jim Danielson, age 51; John Bandholtz, age 52; Mr. Jones, age 60; Mr. Isferding, age 64; Mr. Meagher, age 65; Mr. Smay, age 59; Mr. Conradt, age 53; and Mr. Coxhill, age 60. (Id. at ¶ 166.) SI considered the age of candidates for various employment positions in the company, including those for sales, engineering, human resources, legal, and other jobs. (Id. at ¶ 167.)

Bruce Merten was the human resources manager for SI when the United States facilities were purchased by SIAB from Allis-Chalmers; he was involuntarily terminated at age fifty (50), and replaced by William Lenhart, age forty-four (44), on June 30, 1992. (Id. at ¶¶ 168-169, 172.) The resume submitted by Lenhart to SI and SIAB did not include his date of birth; before he was interviewed in Sweden, and after he was asked by the acting human resources manager about his qualifications and experience, Mr. Lenhart was asked whether he was married, whether he had any children, and what his date of birth was — he was also told that, “in Sweden they have no laws against asking folks for their date of birth.” (Id. at ¶¶ 170-171.) When Mr. Platner selected Mr. Fons as the new general counsel for SI, he utilized Mr. Fons’ college graduation date to compute his age, which did not appear on his resume; Mr. Platner acknowledges that he would ask the age of any applicant for a senior management position. (Id. at ¶ 173.) Mr. Older similarly acknowledges requesting age information for employees hired by SIAB in Sweden, and SIAB management routinely lists applicants with their ages when hiring new personnel. (Id. at ¶ 174-176.) At the Milwaukee unit, applications for employment from older individuals were rejected with handwritten notations on resumes such as “No! 56 yrs old”, “No! 53 year”, and “MUST BE 65 year old!”. (Id. at ¶¶177, 191.) Several of Si’s personnel forms made reference to age, including its Salary Review Worksheet, Salaried Employee Listings, and Salaried Employee Rate Card. (Id. at ¶ 179.)

On February 13,1991, the Milwaukee facility carried out a reduction in force (“RIF”) which resulted in the termination of twenty (20) employees; eighteen of the twenty were over age forty (40), and one of the two under age forty (40) and the youngest of the other eighteen were subsequently rehired by SI. (Id. at ¶¶ 180-181.) Prior to the Milwaukee unit RIF, senior management from the unit met, together with certain consultants, to identify the specific employees who would be terminated; notes prepared by the consultants had a listing titled “Issues: Age.” (Id. at ¶ 182.) A series of large flip charts were generated during the RIF planning meetings in Milwaukee containing notes of the discussions from the meetings, including notes about the persons under consideration for termination. (Id. at ¶ 183.) After the RIF planning meetings were concluded, the flip charts and notes were collected by Fred Cummings, the acting human resources manager for SI. (Id. at ¶ 184.) On July 29, 1992, in response to an EEOC request for information concerning age discrimination charges from two of those terminated in the February of 1991 RIF in Milwaukee, Mr. Lenhart wrote to Si’s general counsel as follows: “I have the notes from Fred Cummings involvement, 2 inches worth. We need to sift through those and decide what to retain.” (Id. at ¶ 185.) The flip charts have been destroyed, lost, or are otherwise missing. (Id. at ¶ 186.) Handwritten notes from two persons in attendance at the RIF meetings in Milwaukee include the age and/or date of birth for each person considered for termination; most of the terminated employees were fifty years of age or older. (Id. at ¶ 187.) After some of the terminated employees planned an age discrimination class action, SI prepared written performance “evaluations” for several of them explaining the reasons for their departure; Robert Jermyn, MPSI sales manager, was asked to prepare one such report, even though he had not participated in the RIF planning meeting. (Id. at ¶¶ 189-190.)

After they were involuntarily terminated, six of the plaintiffs and several other SI employees filed administrative charges of age discrimination, including Mr. Weiss, Mr. Flavel, Mr. Gregor, Mr. Jones, Robert Cnare, Robert Elbel, and Mr. Spoonamore; DILHR and two separate offices of the EEOC found probable cause to conclude that SI engaged in a practice of age discrimination against its older employees. (Id. at ¶ 197.)

1. Byron Smay:

Plaintiff Byron Smay was a district sales manager stationed in St. Louis, Missouri. (Def.Proposed Findings of Fact ¶ 4; Pl.Resp. to Def.Proposed Findings of Fact ¶¶ 198-200.) His territory included Arkansas, Illinois, Indiana, Kansas, Michigan, Missouri and part of Kentucky. (Def.Proposed Findings of Fact ¶ 5.) Mr. Gregor was Mr. Smay’s direct supervisor until his termination and replacement by Mr. Valitehka in July of 1991. (Id. at ¶¶ 15-16.) In February of 1990, after Mr. Guernsey had been general manager of the Appleton unit for four months, he told Mr. Gregor that he “had calculated the average age of our sales force, that it was too high, that he was accustomed to working with much younger people, and that [Mr. Gregor] needed to get younger, aggressive people in [the] sales force.” (PI. Resp. to Def.Proposed Findings of Fact ¶ 201.) Mr. Guernsey emphasized this point in Mr. Gregor’s February of 1990 performance evaluation, wilting that he should develop a “young generation of salesmen and manager candidates.” (Id. at ¶202.) Mr. Gregor believed that the district sales managers reporting to him were knowledgeable, experienced, and doing a good job; however, he felt “tremendous pressure” from Mr. Guernsey to get “young and aggressive type salespeople,” and believed that Mr. Guernsey was “fixated completely on the subject of age.” (Id. at ¶¶ 203-204.)

Prior to replacing Mr. Gregor in April of 1991, Mr. Valitehka was interviewed by an executive search firm retained by SI, which told him that the age of Si’s sales force, and its older group of sales representatives, posed a challenge. (Id. at ¶ 205.) In April of 1991, following a meeting with Mr. Guernsey, Mr. Valitehka told Mr. Gregor that the sales force was too old, and that the “average age of those people needed to be driven down and we needed to get young salespeople there, period, and that was the strategy.” (Id.)

Mr. Smay disagreed with Mr. Valitchka’s vision of the role of a district sales manager, and, along with the other district sales managers, disliked him and had little regard for his abilities. (Def.Proposed Findings of Fact ¶¶ 18-19.) According to the plaintiffs, SI imposed an inflated sales quota on Mr. Smay for 1991, a year when the industry was in a recession. (Pl.Resp. to Def. Proposed Findings of Fact ¶¶ 218-219.) In October of 1991, either Mr. Valitehka or Mr. Guernsey requested that Mr. Smay come to Appleton to discuss his poor sales performance for new equipment; through September of 1991, he had only achieved 15% of his target goal for new equipment sales. (Id.; Def.Proposed Findings of Fact ¶¶ 21-22.) Mr. Smay met with Mr. Valitehka, Mr. Stelter, and Mr. Guernsey, and was criticized for failing to meet his sales quota; no comments were made about his age, and he was not threatened with termination. (Id. at ¶¶ 23-25; PI. Resp. to Def.Proposed Findings of Fact ¶¶ 218-219.) Mr. Valitehka sent Mr. Smay a memorandum in November of 1991 advising him that his performance was “unacceptable and cannot be tol