concurring in part and dissenting in part.
I join in Parts I and II of the majority opinion. I also agree, albeit more reluctantly, that Public Employees Retirement System of Ohio v. Betts, — U.S. -, 109 S.Ct. 2854, 106 L.Ed.2d 134 (1989), compels the conclusion that severance plans are “bona fide employee benefit plans.” Thus, I join in majority’s Part III discussion of that issue. I also join in my colleagues’ *1364rejection of Westinghouse’s argument that the EEOC did not preserve its recall and transfer argument, and in their holding that the plans did not permit or require “involuntary retirement” within the meaning of 29 U.S.C. § 623(f)(2).
However, I must respectfully dissent on one point. Unlike my colleagues, I believe that there are genuine material issues as to whether the plans discriminated against older workers with respect to recall rights — which I believe is a valuable “nonfringe benefit” under Betts — and, if so, whether the plans are a subterfuge to evade the purposes of the ADEA. As the majority acknowledges, the options available to retirement-eligible employees under the plans were “less desirable” than the choices available to younger employees, who could maintain recall rights without sacrificing either present layoff income benefits or vested retirement benefits. Thus, compared to their younger colleagues, older workers had a financial disincentive to retain their recall rights. For at least some older workers, this economic disincentive under the plans may have been so great that they felt compelled to take early retirement and forgo their recall rights, rather than forgo present income from their employer.
As I understand the majority’s reasoning, the court holds that the fact that the right to recall was available to both younger and older workers is sufficient, under Betts, to conclude that severance plans do not discriminate against older workers, within the meaning of the ADEA. I do not read the Supreme Court’s decision as requiring such a narrow view of discrimination. In Betts, the Court stated as an example of a practice giving rise to an inference of subterfuge “an employer’s decision to reduce salaries for all employees while substantially increasing benefits for younger employees.” 109 S.Ct. at 2868. To me, this language supports the view that to the extent that Westinghouse’s severance plans provide economic incentives only to younger employees, the plans may still be actionable under the ADEA.
As the majority notes, a retirement-eligible employee would lose recall rights only through his or her “affirmative action to terminate the employment relationship, through accepting retirement or immediate lump sum severance pay.” Maj.Op. at 1362. However, I do not believe that the employees’ “affirmative action” in this regard is sufficient to shield their employer from liability under the ADEA. If the older employees’ decision to terminate the employment relationship was encouraged by “affirmative,” intentional action on the part of the employer in the structuring of its severance plans, then it may be, as the EEOC alleges, that the plans constituted “a subterfuge for ridding Westinghouse’s workforce of older workers through the discriminatory denial of recall.” EEOC Supp. Brief at 32.
The majority is clearly correct in noting that Betts “has significantly altered the ADEA landscape on employee benefit plans.” Maj.Op. at 1356. It also cannot be disputed that the litigation challenging Westinghouse’s pension and severance plans has consumed too many years and too many dollars. However, in my view, fairness to the parties dictates that the matter be remanded to the district court, which is the proper forum to determine whether — even in the more barren ADEA landscape — the plans actually discriminated on the basis of age and, if so, whether they were a subterfuge for evading the purposes of the ADEA. A remand would give both sides an opportunity to put on evidence, in view of Betts’ new standards, about the actual effect of the severance plans on the workforce in the affected plants, and Westinghouse’s motivations for adopting these plans.