Cash Balance Suit Plaintiff Seeks Dismissal Rehearing

February 10, 2009 ( - An employee who had his age discrimination claim against a cash balance plan dismissed has asked a federal judge to reconsider the dismissal in light of the signing of the Lilly Ledbetter Fair Pay Act.

Plaintiff Wayne Tomlinson argued that with President Obama’s January 29 signing of the Ledbetter bill into law (See Ledbetter Pay Equity Bill Signed into Law ), the U.S. Supreme Court’s May 2007 ruling in Ledbetter v. Goodyear Tire & Rubber Co. (which the Ledbetter bill was intended to overturn) should no longer be considered controlling case law (See High Court Rejects Years-Old Discrimination Claims ).

U.S. District Judge Walker D. Miller of the U.S. District Court for the District of Colorado rejected Tomlinson’s contention that the El Paso Corporation’s cash balance plan represented a “pattern and practice” of age discrimination and that a new discriminatory act was committed each time benefits were calculated.

Miller ruled that the conversion of the pension plan to a cash balance plan was a “discrete act,” or benefits-setting decision, that was analogous to the pay-setting decision in the Supreme Court’s Ledbetter case . Relying on the Ledbetter ruling, Miller found that Tomlinson’s first cash balance plan complaint came too late because the alleged discriminatory conduct would have taken place in 2001; Tomlinson’s charge was filed in July 2004.

The Ledbetter law amended Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Rehabilitation Act to provide that the charge-filing period, which is 300 days in most states, is triggered each time compensation is paid pursuant to a discriminatory compensation decision or practice.

In its own legal papers, El Paso argued that Tomlinson had not presented arguments compelling enough to warrant Miller to rethink his prior ruling.

The case is Tomlinson v. El Paso Corp.,D. Colo., No. 04-cv-02686-WDM.