IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. _________________

WAYNE TOMLINSON,

)

ALICE BALLESTEROS, and

)

GARY MUCKELROY,

)

individually and on

)

behalf of all others similarly situated,

)

)

Plaintiffs, )

)

v.

)

)

EL PASO CORPORATION and

)

EL PASO PENSION PLAN,

)

)

Defendants. )

____________________________________ )

CLASS ACTION COMPLAINT

This is a class action under the Employee Retirement Income Security Act of

1974, as amended (“ERISA”), 29 U.S.C. § 1001 et seq., and a representative action under

the Age Discrimination in Employment Act of 1964, as amended (the “ADEA”), 29

U.S.C. § 621 et seq. Defendants have violated the ADEA and ERISA by amending a

defined benefit retirement plan in a manner that freezes the benefits of older, longer-

service employees and provides lower rates of benefit accrual based on age. Defendants

have further violated ERISA by failing to disclose the reductions and other disadvantages

of the amended plan to employees.

THE PARTIES

1. Plaintiffs are employees of the El Paso Corporation who are participants in

the El Paso Corporation Pension Plan. Plaintiff Wayne Tomlinson was born in December

1951 and is currently age 53. He has worked for the El Paso Corporation since March

1978 and has a highest five-year salary average (the salary average used for pension purposes) in excess of $100,000. Plaintiff Alice Ballesteros was born in 1951 and is currently age 53. She started work with the El Paso Corporation in 1978 and has a salary average below $50,000. Plaintiff Gary Muckelroy was also born in 1951. He has worked for the El Paso Corporation since 1977 and has a salary average between $50,000 and $100,000. The other members of the proposed class reside throughout the United States and on information and belief number over 1,500.
2. On information and belief, Defendant El Paso Corporation (“El Paso”) is the largest pipeline company and the leading provider of natural gas interstate transportation services in North America. El Paso is incorporated under the laws of the State of Delaware. It is qualified to do business and conducts business in, among other states, Colorado. El Paso has its main office for the western pipelines in Colorado Springs, Colorado.
3. Defendant El Paso is an “employer” within the meaning of the Age Discrimination in Employment Act of 1967, as amended, and the Employee Retirement Income Security Act of 1974, as amended.
4. Defendant El Paso Pension Plan (the “Pension Plan”) is an employee benefit plan, as defined at § 3(3) of ERISA, 29 U.S.C. § 1002(3). More particularly, the Pension Plan is an “employee pension benefit plan”, as defined at ERISA § 3(2)(A), 29 U.S.C. § 1002(2)(A), and a “defined benefit plan” within the meaning of ERISA § 3(35), 29 U.S.C. § 1002(35). The administrative offices of the Defendant Pension Plan are in Houston, Texas.
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5. In addition to being the “plan sponsor” under § 3(16)(B) of ERISA, 29 U.S.C. § 1002(16)(B), Defendant El Paso functions as the “plan administrator” for the El Paso Pension Plan within the meaning of § 3(16)(A) of ERISA, 29 U.S.C. § 1002(16)(A) and as the “fiduciary” for the Pension Plan’s participants and beneficiaries within the meaning of ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A) .
JURISDICTION AND VENUE 6. This Court has jurisdiction over the subject matter of this action pursuant to the Employee Retirement Income Security Act of 1974 as amended, 29 U.S.C. § 1132(e)(1), the Age Discrimination in Employment Act of 1967 as amended, 29 U.S.C. § 626(c)(1), and 28 U.S.C. § 1331. 7. Venue is proper in this Court under 29 U.S.C. § 1132(e) in that the Pension Plan may be found in this District because the Plaintiffs earned benefits in this District.
JURY TRIAL 8. Plaintiffs demand a trial by jury under the United States Constitution, Fed.R.Civ.P. 38(a) and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626(c).
CLASS ACTION ALLEGATIONS 9. Plaintiffs bring this action as a class action in accordance with Federal Rule of Civil Procedure 23 to resolve disputes under the Employee Retirement Income Security Act of 1974 as amended and as a representative action under the Age Discrimination in Employment Act of 1967 as amended.
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10. Plaintiffs bring this action on behalf of all other similarly-situated El Paso employees who have participated in the El Paso Pension Plan. The proposed class is defined as any and all persons who:
1. Are current or former El Paso employees, 2. Participated in the El Paso Pension Plan on or after the January 1,
2002 date on which the Pension Plan was fully converted to a cash balance design, and 3. Are over age 40, or will be over age 40 as of the date of the judgment. 11. On information and belief, the proposed class numbers over 1,500 making joinder impracticable. 12. Common questions of law and fact affect the rights of the members of the class. The claims of the named class representatives are typical of the claims of the members of the class. The named class representatives will fairly and adequately protect the interests of the class. Plaintiffs’ counsel is experienced in class action litigation involving pension plans. 13. This action is best maintainable as a class action because Defendant has acted and/or refused to act on grounds generally applicable to the class the Plaintiffs represent, thereby making appropriate final injunctive and other equitable relief in favor of Plaintiffs and the class. In addition, the prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudication that would establish incompatible standards of conduct for Defendants. Judicial economy dictates resolving all issues in a single action in accordance with Federal Rule of Civil
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Procedure 23. 14. With respect to the class-wide claims under the Age Discrimination in
Employment Act, the ADEA requires that members of the proposed class affirmatively opt into the suit after notice is given. 29 U.S.C. § 626(b) (incorporating by reference 29 U.S.C. § 216(b) of the Fair Labor Standards Act).
FACTUAL ALLEGATIONS 15. El Paso established the El Paso Pension Plan as a defined benefit plan for El Paso employees. Since its establishment, the El Paso Pension Plan has offered participants fixed annuities at retirement determined by a formula that multiplies years of credited service in the plan by a percentage of compensation in a specified pay base averaging period (the “old” formula). 16. More particularly, the Pension Plan’s benefit formula has been 1.1% of “Final Average Monthly Earnings” plus 0.5% of Final Average Monthly Earnings above a “Social Security Integration Level,” with the total of those amounts multiplied by years of credited service (up to a maximum of 30 years). “Final Average Monthly Earnings” are the highest average monthly earnings received during any 60 consecutive month period within the last 120 months before benefits stop accruing. The “Social Security Integration Level” is equal to the Social Security Taxable Wage Base in the year of termination divided by 36. For example, in 2001, the Social Security Taxable Wage Base was $80,400. The Social Security Integration Level was therefore $2,233.33 ($80,400 ÷ 36). 17. In October 1996, El Paso distributed a brochure entitled “Program Highlights: Pension Benefits from El Paso Energy Corporation” to Plan participants about
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a change in its benefit formula to a new formula known as a “cash balance” formula. The “new style” of pension plan was called “CBP Select.”
18. Under El Paso’s cash balance formula, initial Cash Balance Accounts were set up for participants. The Cash Balance Accounts are not actual accounts as in a savings account, a mutual fund, or even a 401(k) plan. Instead, they are hypothetical accounts to which notations are made. No funds are actually allocated to the participant’s account.
19. The initial Cash Balance Accounts for older, longer-service participants were set up at levels far below the value of their accumulated annuities under the “old” formula.
20. During a “transition period” between January 1, 1997 and December 31, 2001, Plan participants accrued benefits under both the old formula and the cash balance formula. After December 31, 2001, only the “cash balance” account benefits continue to accrue.
21. Transition provisions provide that upon termination of employment after December 31, 2001, participants will receive the higher of: (1) the amount computed under the new cash balance formula, or (2) the accumulated defined benefits to which the employees were already eligible, with no accruals after December 31, 2001.
22. Because El Paso set up the initial Cash Balance Accounts for older workers at a level well below the value of their previously accumulated benefits, a period was created during which the accumulated benefits to which participants are already entitled, even with no additional accruals after December 2001, are “higher” than their Cash Balance Accounts.
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23. Under the cash balance amendments, El Paso credits each participant’s hypothetical Cash Balance Account with two notations on a quarterly or annual basis. The first is a percentage of a participant's salary referred to as the “pay credit.” El Paso’s Cash Balance formula increases the pay credit at certain intervals, from a minimum of 4% of salary for participants whose age and years of credited service is less than 35, 5% for age and service between 35 and 49 points, 6% for age and service between 50 and 64 points, and a maximum of 7% of salary for participants whose age and years of credited service is 65 points or more. The pay credit does not increase thereafter.
24. The second annual notation to the participant’s hypothetical account is a hypothetical interest credit. The annual hypothetical interest rate is the Five-Year U.S. Treasury Constant Maturity Yield for the month of October immediately preceding the beginning of a new Plan Year and cannot be lower than 4%.
25. El Paso’s cash balance formula effects two changes that are not obvious on its face. First, the transition is structured in a manner that causes older, longer-service employees to earn no additional benefits for a number of years beyond the benefits to which they were already entitled under the old plan formula as of December 31, 2001. Second, the future rate of benefit accruals is significantly reduced even when employees begin to earn additional benefits.
26. The brochure introducing “CBP Select” that El Paso distributed in October 1996 did not disclose the freeze in benefits for older, longer-service employees, nor did it disclose that the “new” formula masks reductions in the rate of future benefit accruals.
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CLAIM I AGE DISCRIMINATION IN PENSION BENEFIT FREEZE 27. The statements of the previous counts are hereby included as if set forth at length. 28. The Plaintiffs and the members of the proposed Plaintiff class are in the protected class under the federal Age Discrimination in Employment Act of 1967 (“ADEA”), as amended. 29. The ADEA prohibits discrimination against any individual with respect to compensation, including compensation in the form of pension benefits, because of the individual’s age. The ADEA does not permit age-based pay differences: “a lower pension for an older worker is equivalent to a lower salary for the same work.” Quinones v. City of Evanston, 58 F.3d 275, 278 (7th Cir. 1995). 30. Age discrimination is tested on the basis of the individual’s current compensation. An employer cannot avoid age discrimination by contending that an older worker’s accumulated benefits are higher than those of a younger worker, even though the current year’s benefits for the older worker are less. 31. The ADEA’s “bona fide employee benefit plan” exception exempts certain bona fide employee benefit plans from scrutiny for age discrimination. However, the “bona fide employee benefit plan” exception only applies where the actual amount of payment or the actual cost incurred on behalf of an older worker is not less than that incurred on behalf of a younger person when the tests in 29 C.F.R. 1625.10 are applied. 32. In transitioning to the cash balance formula, Defendant El Paso used a
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method that froze the retirement benefits that the named Plaintiffs and other class members will receive for many years at the previously accumulated levels as of December 31, 2001.
33. It takes many years after December 31, 2001 for the cash balance accounts of older, longer-service employees to move ahead of the benefits accumulated before the changes because El Paso set the initial Cash Balance Accounts for older, longer-service workers at low levels compared to the value of their accumulated pension benefits.
34. Because the new cash balance pay credits are only contingently payable under El Paso’s “higher of” formulation, this means that older, longer-service employees actually receive no additional benefits for their years of employment with El Paso in 2002, 2003, 2004 and many subsequent years.
35. As a result of El Paso’s transition method, older, longer-service employees experience a benefit freeze. Younger or recently hired employees do not experience a benefit freeze. They receive annual increases to their pensions.
36. During the years in which payment of the cash balance benefits is contingent under the “higher of” formulation, Defendant incurs no cost for Plaintiffs' pensions. At the same time, Defendant incurs costs for younger employees' pensions.
37. The actual costs incurred on behalf of older employees are less than those incurred on behalf of younger employees when the test in 29 C.F.R. 1625.10 is applied.
38. Defendant’s actions discriminate against Plaintiffs because of age in violation of the ADEA, 29 U.S.C. § 623(a) and 29 U.S.C. § 626(b).
39. As required by 29 U.S.C. § 626(d), a representative of the class filed a
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timely charge of age discrimination on July 16, 2004, on behalf of himself and other workers in the protected age group with the Equal Employment Opportunity Commission (“EEOC”) more than 60 days prior to commencement of this action. Defendants denied the charge and the EEOC was unable to resolve the controversy. Plaintiffs are filing this action on a timely basis under 29 U.S.C. § 626(d).
40. Plaintiffs have not otherwise attempted to exhaust administrative remedies because El Paso denied the EEOC charges filed on July 16, 2004 and Douglas Foshee, El Paso’s President and Chief Executive Officer, announced the company’s position on August 31, 2004 that no changes will be made to the previously-modified defined benefit plan. In addition, Plaintiffs’ claims involve statutory violations that do not allow the Plan sponsor or the Plan administrator discretion to modify what the law requires.
CLAIM II CONDITIONING PAYMENT OF ADDITIONAL ANNUAL ACCRUALS
VIOLATES ERISA SECTIONS 203(a) AND 204(b)(1)(B) 41. The statements of the previous counts are hereby included as if set forth at length. 42. To conform with Esden v. Bank of Boston, 229 F.3d 154, 169 (2d Cir. 2000), the El Paso Pension Plan must comply with the 133a% benefit accrual method in ERISA § 204(b)(1)(B), 29 U.S.C. § 1054(b)(1)(B). The 133a% accrual method requires that defined benefit pension plans, including cash balance plans, offer “annual rates” of benefit accrual. The annual rates of benefit accruals in later years of participation can be no more than 133a% of the annual rates in earlier years. See, e.g., Esden, supra, 229 F.3d
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at 169. 43. A right to benefit accruals must be unconditional to satisfy the
nonforfeitability requirements of ERISA § 203(a), 29 U.S.C. § 1053(a). Pursuant to the regulations at 26 C.F.R. 1.411(a)-4: “[A] right which, at a particular time, is conditioned under the plan upon . . . subsequent forbearance which will cause loss of such right is a forfeitable right at that time.” IRS Notice 96-8, 1996-1 C.B. 359, explains:
“If benefits . . . have accrued [but] those benefits are disregarded when benefits commence before normal retirement age, the plan has effectively conditioned entitlement to the benefits . . . on the employee not taking a distribution prior to normal retirement age.” In Esden v. Bank of Boston, supra, 229 F.3d at 157 and 168, the Second Circuit held that “because Plaintiff received less than she would have had she not elected to take her [cash balance] benefit in the form of a lump sum, part of her pension benefit was made conditional on the option chosen, in violation of the anti-forfeiture provisions of ERISA §203(a).” 44. The amended El Paso Pension Plan conditions entitlement to the accrued benefits derived from the participant’s Cash Balance Account on participants not retiring before the normal retirement age and receiving a distribution of his or her ERISA protected benefits. However, ERISA § 203(a), 29 U.S.C. § 1053(a), mandates that the right to the cash balance benefit accruals must be unconditional. 45. Alternatively, the amended Plan violates the 133a% rule in ERISA § 204(b)(1)(B), 29 U.S.C. § 1054(b)(1)(B), because (1) the annual rates of cash balance accruals for 2002, 2003, 2004 and succeeding years are only nominal bookkeeping entries
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that are not actually payable in many circumstances, (2) the annual rates of accrual in “later plan years” exceed 133a% of the accruals in the current and subsequent plan years, and (3) the annual rates of accrual for older, longer-service employees are only nominal whereas the rates of accrual for younger and newly-hired employees are always payable.
CLAIM III REDUCED RATES OF BENEFIT ACCRUAL BASED ON AGE 46. The statements of the previous counts are hereby included as if set forth at length. 47. Accumulated interest credits under a cash balance pension plan are greater for younger participants due to the effect of compound interest until retirement. Unless the pay credits in a cash balance plan are commensurately age-weighted, the rate of benefit accrual will decrease with age. Cooper v. IBM Personal Pension Plan, 274 F.Supp.2d 1010, 1021 (S.D. Ill. 2003). 48. ERISA § 204(b)(1)(H), 29 U.S.C. § 1054(b)(1)(H), prohibits reductions in the rate of accrual “because of the attainment of any age.” The same prohibition is contained in ADEA § 4(i)(1)(A), 29 U.S.C. § 623(i)(1)(A). 49. While El Paso’s initial weighting of the pay credits mitigates age discrimination in the rate of accrual, it does not eliminate it. Although the pay credits initially increase with age and years of credited service, they do not increase at all once the participant reaches a combined age and years of credited service of 65. Thus, participants whose age and years of pay credit service amount to 65 or more experience decreases in their rate of benefits accrual every year until they retire. Participants who are
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hired at older ages will also experience decreases because of their proximity to retirement age.
50. The reductions in the rate of accrual because of age violate ERISA and the ADEA.
CLAIM IV UNTIMELY, IMPROPER, AND INADEQUATE ERISA 204(h) NOTICE
51. The statements of the previous counts are hereby included as if set forth at length.
52. El Paso’s cash balance amendments effected a reduction in the rate of future benefit accruals. Retirement benefits are now based on year-by-year compensation rather than average compensation in their highest 60 months of employment. The rate of accruals also decreases for participants with 65 age and service points and for participants who were hired at older ages.
53. El Paso has to date not notified Plan participants of any significant reductions in the rate of future accruals.
54. By implementing the reduction before adoption of the actual amendments and without providing notice of a significant reduction in the future rate of accruals at least 15 days before the amendments’ effective date, El Paso violates ERISA § 204(h), 29 U.S.C. § 1054(h), which requires that adoption of the amendments precede notice and that notice of the reduction precede implementation by at least 15 days.
CLAIM V INADEQUATE SUMMARY PLAN DESCRIPTIONS
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55. The statements of the previous counts are hereby included as if set forth at length.
56. On information and belief, El Paso distributed a Summary Plan Description (“SPD”) of the Pension Plan, as amended by the “new” cash balance formula and transition provisions, in August 2002 to employees. The SPD, however, does not disclose that the “new” features:
(a) cause older participants to earn no additional benefits beyond those already earned;
(b) significantly reduce the rate of future benefit accruals; and (c) change the basis for benefits to year-by-year salary, whereas the “old”
formula based all benefits on compensation in a highest pay base averaging period. In addition, illustrative examples in the SPD omit comparisons of benefits under the “old” and the “new” formulas which would show the reductions and other disadvantages. 57. El Paso's SPD is not “written in a manner calculated to be understood by the average plan participant,” and is not “sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan,” in violation of § 102 of ERISA, 29 U.S.C. § 1022. El Paso’s failure to disclose the reductions and other disadvantages of the cash balance amendments also violates the fiduciary duty under ERISA § 404(a)(1), 29 U.S.C. § 1104(a)(1), to keep participants informed.
PRAYER FOR RELIEF WHEREAS, the Plaintiffs pray that this Court:
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A. Declare that the terms of the Defendant Pension Plan, as amended by the cash balance features, violate the ADEA § 4(a), 29 U.S.C. § 623(a), because they create periods of years in which older, longer-service participants earn no additional benefits, while younger, shorter-service workers are accruing additional benefits.
B. Declare that the terms of the Defendant Pension Plan, as amended by the cash balance features, violate the vesting and minimum accrual standards in ERISA §§ 203(a) and 204(b)(1)(B), 29 U.S.C. §§ 1053(a) and 1054(b)(1)(B), because they create periods of years in which older, longer-service participants have no annual rates of accrual that are actually payable.
C. Declare that the terms of the Defendant Pension Plan, as amended by the cash balance amendments, violate the accrual standards in ERISA § 204(b)(1)(H), 29 U.S.C. § 1054(b)(1)(H), and ADEA § 4(i)(1)(A), 29 U.S.C. § 623(i)(1)(A), by decreasing the rates at which benefits accrue based on age.
D. Declare that El Paso's implementation of the cash balance amendments violates the 15-day advance notice rule in ERISA § 204(h), 29 U.S.C. § 1054(h); the Summary Plan Description rules in ERISA Sections 102 and 104(b)(1), 29 U.S.C. §§ 1022 and 1024(b)(1); and the fiduciary duties to keep beneficiaries informed in ERISA § 404(a)(1), 29 U.S.C. § 1104(a)(1).
E. Order El Paso to take all necessary steps to make the cash balance features fully compliant with the law, including eliminating the conditioning of receipt of the cash balance formula’s annual pay credits and interest on the participant’s age and years of credited service and age-based reductions in rates of benefit accruals.
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F. Order that El Paso prepare a Section 204(h) notice and SPD that fully disclose all reductions and other disadvantages under the cash balance formula that are not required to be reformed by the Court’s Order.
G. Order the Defendants to pay double damages for willful violations of the ADEA.
H. Order the Defendants to pay interest, attorneys’ fees and expenses. I. Award such other equitable and remedial relief as the Court deems appropriate to ensure receipt of all retirement benefits required to give effect to the Court’s declarations. DATED this _____ day of December, 2004.
Respectfully submitted,

______________________ Stephen R. Bruce Suite 210 805 15th St., NW Washington, D.C. 20005 202 / 371-8013

Plaintiffs’ Addresses: Wayne Tomlinson

_______________________ Barry D. Roseman Roseman & Kazmierski, LLC 1120 Lincoln St., Suite 1607 Denver, CO 80203-2141 303 / 839-1771 Attorneys for Plaintiffs
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1350 Golden Hills Road Colorado Springs, CO 80919 Alice Ballesteros 6764 Granite Peak Drive Colorado Springs, CO 80918 Gary Muckelroy 14640 Latrobe Drive Colorado Springs, CO 80921
PLAINTIFFS DEMAND TRIAL BY JURY ON ALL ISSUES SO TRIABLE RAISED HEREIN
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 Case 1:04-cv-02686-WDM-CBS Document 213 Filed 03/19/08 USDC Colorado Page 1 of 21
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO JUDGE WALKER D. MILLER
Civil Action No. 04-cv-02686-WDM-MEH WAYNE TOMLINSON, ALICE BALLESTEROS, and GARY MUCKELROY, individually and on behalf of all others similarly situated,
Plaintiffs, v. EL PASO CORPORATION, and EL PASO PENSION PLAN,
Defendants.
ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS AND MOTION FOR CLASS ACTION CERTIFICATION
Miller, J. This matter is before me on Defendants’ Motion for Judgment on the Pleadings
Pursuant to Federal Rule of Civil Procedure 12(c) (doc no 128), Plaintiffs’ Motion to Certify Class and Conditional Approval of ADEA Collective Action (doc no 107), Defendants’ Motion to File the Declaration of Kevin Minor (doc no 130), and Defendants’ Motion to Strike New Arguments Raised in Plaintiffs’ Reply (doc no 141). Defendants El Paso Corporation and El Paso Pension Plan (collectively “El Paso”) seek dismissal of Plaintiffs’ remaining claims under the Employee Retirement Income Security Act (“ERISA”), leaving pending Plaintiffs’ claim under the Age Discrimination in Employment Act (“ADEA”). Plaintiffs seek class certification on their ERISA claims and conditional approval of an ADEA collective action. Upon review of the parties’ filings and supplemental authority, I conclude oral argument is not required. For the reasons

Case 1:04-cv-02686-WDM-CBS Document 213 Filed 03/19/08 USDC Colorado Page 2 of 21
that follow, Defendants’ Motion for Judgment on the Pleadings will be granted in part. Plaintiffs’ Motion to Certify Class is granted in part and denied in part without prejudice.
Background1 This case arises out of El Paso Corporation’s conversion of its defined benefit pension plan, in particular one based on a final average pay formula to one based on a cash balance formula. Under the old plan, the amount of a retiree’s monthly pension was based upon their years of credited service and a final average of salary. Under the amended plan, this amount is based upon the amount of credits employees accumulate throughout their years of service. Each participating employee is given a hypothetical account, and each quarter the employee earns “pay credits” based upon a percentage of their salary, and “interest credits” based upon the yield of a five-year U.S. Treasury Bond. See generally, Register v. PNC Fin. Servs. Group, Inc., 477 F.3d 56, 61-63 (3d Cir. 2007) (comparing and contrasting traditional defined-contribution plans, traditional defined-benefit plans, and cash balance plans). During a transition period between January 1, 1997, and December 31, 2001, participating employees accrued benefits under both the new and old plans, and retiring employees could elect whichever option benefitted them the most. Once this transition period expired retirees could still choose either option, but the old average pay plan was “frozen” at whatever benefits the employee had earned as of December 31, 2001. Benefits would continue to accrue under the new cash balance formula.
1 A motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) is subject to the same standard as a motion to dismiss pursuant to 12(b)(6). Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 528 (10th Cir. 1992). Accordingly, the following facts are taken from Plaintiffs’ allegations and referenced documents.
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In this putative class action, Plaintiffs allege that El Paso set the initial cash balance accounts for older, longer-service employees at levels significantly below the value of their accumulated annuities under the old plan. One effect of the transition was that for some workers, overall benefits did not grow until the cash balance benefits caught up to and exceeded the “frozen” benefits due under the old formula. This period is commonly referred to as a “wear away.”
Participants were notified of the changes to the plan in October 1996 by way of a letter and brochure. These documents informed participants that the amendments to the plan would take effect January 1, 1997, explained the mechanics of the cash balance approach and the five-year transition period, and gave examples of benefit accruals. In addition, a Summary Plan Description (“SPD”) was distributed to employees in August 2002. Plaintiff Wayne Tomlinson filed a charge of discrimination with the EEOC on July 16, 2004.
Plaintiffs’ first claim for relief is based on their allegation that the freezing of old plan accruals discriminated against older workers in violation of the Age Discrimination in Employment Act (ADEA). Plaintiffs also assert the following claims under ERISA: Violation of ERISA sections 203(a) and 204(b)(1)(B) (Claim II); Inadequate notice of amendment in violation of ERISA section 204(h) (Claim IV); Inadequate summary plan descriptions (Claim V). I dismissed Plaintiffs’ third claim, that the cash balance plan violated ERISA, on March 22, 2007 (doc no 108) based on arguments and authorities in a Motion to Dismiss filed by Defendants.
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Case 1:04-cv-02686-WDM-CBS Document 213 Filed 03/19/08 USDC Colorado Page 4 of 21
Standard of Review In considering a motion under Fed. R. Civ. P. 12(b)(6), which is the standard I apply here, I “must accept as true all well-pleaded facts, and construe all reasonable allegations in the light most favorable to the plaintiff.” United States v. Colorado Supreme Court, 87 F.3d 1161, 1164 (10th Cir. 1996). A complaint must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007).
Discussion 1. Motion for Judgment on the Pleadings
I will address at the outset Plaintiffs’ contention that I should not entertain this motion because it is successive of Defendants’ previously-filed Motion to Dismiss. Plaintiffs have pointed me to no authority indicating that a party cannot file a motion under Rule 12(c) after previously filing a motion under Rule 12(b)(6). Moreover, Defendants’ previous motion did not address the merits of Claims II, IV, and V, as their pending Rule 12(c) motion does. Rather, in the Motion to Dismiss, Defendants sought a more definite statement on Claim II and generally asserted an exhaustion defense on all the ERISA claims. Accordingly, I disagree with Plaintiffs that the motion is successive and will consider the motion and arguments contained therein.
A. Claim II - Anti-backloading and Forfeiture Claim II of the complaint alleges two separate violations of ERISA based on the “wear away” period, where for some participants benefits under old plan are frozen and
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Case 1:04-cv-02686-WDM-CBS Document 213 Filed 03/19/08 USDC Colorado Page 5 of 21
benefits under the new plan accrue but do not yet exceed the benefit level of the old
plan. Plaintiffs claim that this effect violates one of three of ERISA’s “anti-backloading”
provisions, specifically the “133 1/3% rule” set forth in 29 U.S.C. § 1054(b)(1)(B). In
addition, Plaintiffs contend that this effect works a forfeiture if a participant retires
during the wear away period, in violation of 29 U.S.C. § 1053.
As explained in Register v. PNC Fin. Servs. Group, Inc., the purpose of the anti-
backloading provision is
. . . to “prevent an employer from avoiding the vesting requirements through minimal accrual of benefits in early years of employment, followed by larger benefit accruals as an employee nears retirement.” Hoover v. Cumberland, Md. Area Teamsters Pension Fund, 756 F.2d 977, 982 n. 10 (3d Cir.1985). Congress intended by the anti-backloading provision to prohibit an employer from “providing inordinately low rates of accrual in the employee's early years of service when he is most likely to leave the firm and ... concentrating the accrual of benefits in the employee's later years of service when he is most likely to remain with the firm until retirement.” Langman v. Laub, 328 F.3d 68, 71 (2d Cir.2003) (quoting H.R. REP. NO. 93-807, at 4688 (1974), reprinted in 1974 U.S.C.C.A.N. 4639, 4688).
477 F.3d at 71.
The parties agree that the only provision at issue here is the 133 1/3% rule
under 29 U.S.C. § 1054(b)(1) (two other formulas are included in the statute but do not
apply here). The applicable provision sets forth that a defined benefit plan, such as the
cash balance plan here, complies with the anti-backloading rules “if under the plan the
accrued benefit payable at the normal retirement age is equal to the normal retirement
benefit and the annual rate at which any individual who is or could be a participant can
accrue the retirement benefits payable at normal retirement age under the plan for any
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later plan year is not more than 133 1/3 percent of the annual rate at which he can accrue benefits for any plan year beginning on or after such particular plan year and before such later plan year.” 29 U.S.C. § 1054(b)(1)(B). This has been interpreted to mean that ERISA “requires that the value of the benefit accrued in any year may not exceed the value of a benefit accrued in any previous year by more than 33%.” Esden v. Bank of Boston, 229 F.3d 154, 167 n. 18 (2d Cir. 2000). However, “any amendment to the plan which is in effect for the current year shall be treated as in effect for all other plan years . . . .” 29 U.S.C. § 1054(b)(1)(B)(i).
Plaintiffs contend that the amended plan violates the 133 1/3% rule “because (1) the annual rates of cash balance accruals for 2002, 2003, 2004 and succeeding years are only nominal bookkeeping entries that are not actually payable in many circumstances, (2) the annual rates of accrual in ‘later plan years’ exceed 133 1/3% of the accruals in the current and subsequent plan years, and (3) the annual rates of accrual for older, longer-service employees are only nominal whereas the rates of accrual for younger and newly-hired employees are always payable.” Complaint ¶ 45. However, as Defendants demonstrate in their motion, every court that has considered the issue has rejected Plaintiffs’ argument on the grounds that when a plan is amended, only the new plan is considered in the analysis.
Most pertinent to my conclusion is the decision in Register, which is factually similar to this case. There, the defendant had converted its pension plan from a traditional defined benefit plan to a cash balance plan. 477 F.3d at 60. Early retirement benefits of the old plan were frozen and participants were given the option of
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either receiving the accrued (but frozen) early retirement benefits or the benefit they would have accrued under the cash balance plan, whichever was higher. Id. A similar wear away period occurred because participants who chose to retain the accrued benefits under the old plan did not receive additional benefit accruals until the cash balance plan benefit caught up to the old plan benefit. Id. at 61. The court rejected plaintiffs’ argument that the wear away period violated the 133 1/3% rule. First, the court noted that the argument essentially required using the two separate formulas to determine the “value of benefits accrued”: first, the prior plan formula to determine previous accrued benefits and second, the cash balance formula once the account exceeds the benefits under the prior plan. Id. at 71. The court rejected this approach because of 29 U.S.C. § 1054(b)(1)(B)(I), which states that, for the purposes of the 133 1/3% rule, an amendment to the plan is treated as in effect for other years. “Thus, once there is an amendment to the prior plan, only the new formula is relevant when ascertaining if the plan satisfies the 133 1/3% test.” Id. at 72. Accordingly, the wear away effect does not violate the anti-backloading rules. Id. I am persuaded by the analysis of the Register court and conclude that Plaintiffs cannot state a claim for violation of ERISA’s anti-backloading provisions. See also Finley v. Dun & Bradstreet Corp., 471 F. Supp. 2d 485, 494-95 (D. N.J. 2007); Richards v. FleetBoston Fin. Corp., 427 F. Supp. 2d 150, 170-71 (D. Conn. 2006).
Plaintiffs argue that the Register and other similar decisions are in error because they do not take into account 26 C.F.R. § 1.411(b)-1(a), which states that a defined benefit plan in which accrued benefits for all participants are determined under more
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than one plan formula “must be aggregated in order to determine whether or not the accrued benefits under the plan for participants satisfy one of the alternative [antibackloading] methods.” The Register court, however, did consider this regulation and determined that it applied to a situation where there were two or more co-existing formulas under a single plan, but not to plan amendments to a single formula. 477 F.3d at 71-72; accord Wheeler v. Pension Value Plan for Employees of the Boeing Co., Case No. 06-cv-500-DRH, 2007 WL 2608875 at *12 (S.D. Ill. Sept. 6, 2007) (“A participant in the Plan does not receive an accrued benefit calculated under two co-existing formulas. Rather, a Plan participant receives a benefit under one of two separate and mutually exclusive formulas set out in the Plan . . . .”).
I agree that section 1.411(b)-1(a) does not require considering the two alternative formulas here as a hybrid when testing the plan for backloading. I find particularly persuasive the thorough and well-researched analysis in Wheeler. Examining the examples provided in the regulations and other authority, the court there determined that this regulation applies “when a participant’s accrued benefit under a plan is calculated using a sequence of formulas over time,” which could then have the effect of providing higher rates of benefit accrual for participants near retirement, even if each individual formula might comply with the statute’s provisions. Wheeler at *8-*10. Similarly, as both the Wheeler and Register courts noted, conversions from defined benefit to cash balance pension plans and the resulting wear away effects simply do not implicate the objective of the anti-backloading provisions, which are to prevent a plan “from being unfairly weighted against shorter-term employees.” Register, 477 F.3d
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at 72; Wheeler, 2007 WL 2608875 at *13 (“Moreover, the accrual rates at issue clearly are not tied to distinctions of age and service intended to favor older employees and to coerce employees into remaining in service until retirement age.”) Here, Plaintiffs have the opposite concern – i.e., that younger employees or employees with less service effectively obtain a higher benefit accrual rate than older, longer-service employees during the de facto freeze of the older employees’ accruals.
Plaintiffs disagree and point to an IRS publication, which they assert supports their position that a plan containing a “greater of” accrual formula may violate the 133 1/3% rule. None of the informal authority provided by Plaintiffs persuades me that section § 1.411(b)-1(a) applies to these circumstances and I am not persuaded by the additional and supplemental authority provided by Plaintiff, including the February 1, 2008 Internal Revenue Service Revenue Ruling 2008-7 (Rev. Rul. 2008-7). Accordingly, this claim should be dismissed.
Although Defendants did not raise the second part of Claim II (nonforfeiture rules) in the Motion, Plaintiffs discuss it in their response and so I consider that part of claim to be at issue. I conclude that Plaintiffs have not stated a claim for violation of ERISA section 203(a). This provision requires that “each pension plan shall provide that an employee’s right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age.” 29 U.S.C. § 1053(a). ERISA defines a “nonforfeitable” pension benefit or right as “a claim obtained by a participant or his beneficiary to that part of an immediate or deferred benefit under a pension plan which arises from the participant’s service, which is unconditional, and which is legally
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enforceable against the plan.” 29 U.S.C. § 1002(19). Related regulations provide that “a right which, at a particular time, is conditioned under the plan upon a subsequent event, subsequent performance, or subsequent forbearance which will cause the loss of such right is a forfeitable right at that time.” 26 C.F.R. 1.411(a)-4(a). Plaintiffs contend that “[i]f a participant elects to receive the benefits he or she earned in plan years before January 1, 2002, he or she loses the right to payment of the cash balance accruals earned in the years after that date.” Plaintiffs’ Opposition Brief at 11. Thus, according to Plaintiffs, “the right to receipt of cash balance accruals is conditioned on foregoing receipt of previously-earned benefits in annuity form.” Id.
Plaintiffs have not stated a claim of forfeiture. As noted by the United States Supreme Court, “it is the claim to the benefit, rather than the benefit itself, that must be ‘unconditional’ and ‘legally enforceable against the plan.’ ” Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 371 (1980). Plaintiffs have an unconditional right to claim the maximum benefits available under the plan. The “forebearance” they describe appears to be simply the normal effect of retirement – i.e., that accruals cease and the retirement benefits themselves are paid out. Accordingly, Plaintiffs’ claim fails.
B. Claim IV - Adequacy of Notice Claim IV must also be dismissed. According to the complaint, the plan amendment reduced the rate of future benefit accrual and Defendants were therefore required under ERISA § 204(h) to give participants written notice of the reduction at least 15 days before the effective date of the amendment. 29 U.S.C. § 1054(h)(1)(A). Defendants contend that the letter and brochure sent in 1996 satisfied the requirements
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of the regulations then existing concerning the content of such notice, including that the notice be written, set forth the amendment (or a summary thereof), and set forth the amendment’s effective date. 26 C.F.R. § 1411(d)-6T(1996). Moreover, the regulation expressly did not require the plan to “explain how much the individual benefit of each participant . . . will be affected by the amendment.” Id. I agree with Defendants that the 1996 letter and brochure satisfied the requirements of the regulation in force at the time.
In response, Plaintiffs contend that the plan amendment did not become effective until after the transition period (i.e., December 31, 2001), and that therefore the more stringent regulations in force in 2002 should apply. This argument is unpersuasive. All documentation relating to the plan unambiguously demonstrates that the amendment was effective January 1, 1997, and Plaintiffs even alleged this in their complaint. Plaintiffs have provided no authority to support their argument that the plan changes took effect on December 31, 2001. Plaintiffs also argue that the letter and brochure did not constitute a section 204(h) notice because they were not so labeled and because Defendants later issued another notice specifically identified as a 204(h) notice. This is also unavailing. Plaintiffs have provided no legal authority establishing that a notice under section 204(h) had to identify the applicable ERISA provision in order for the notice to be effective, or that no more than one notice could be issued.
Finally, Plaintiffs contend that even if the 1996 regulations are applied, the letter and brochure were inadequate because they did not give participants notice about wear-aways or benefit reductions. The cases cited by Plaintiff in support of this
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argument are distinguishable or simply do not address Plaintiff’s contention. The plan at issue in In re J.P. Morgan Chase Cash Balance Litigation was amended in 2002 and replaced several predecessor plans after corporate acquisitions and restructuring; the court did not even examine the question of which regulations applied and whether the notice complied with earlier content requirements. 460 F.Supp.2d 479, 491 (S.D.N.Y. 2006) (refusing to dismiss plaintiffs’ section 204(h) claim). In Richards v. FleetBoston, the court refused to dismiss the plaintiff’s notice claim because defendants could not show that the purportedly compliant notice was provided to employees at least 15 days before the effective date of the change. 427 F.Supp.2d at 172. There is no allegation here that the 1996 letter and brochure were untimely.
In addition, In re Citigroup Pension Plan ERISA Litigation concerns a plan amendment that used a formula that violated numerous ERISA provisions, including anti-backloading, and the notice at issue did not disclose the plan’s “unorthodox approach to calculating benefits and monitoring accrual rates.” 470 F.Supp.2d 323, 339 (S.D.N.Y. 2006). It does not stand for the proposition that all wear away and benefit accrual reduction effects had to be disclosed in a section 204(h) notice.
Rather, I again conclude that the most pertinent authority is Register, which also applied the old regulations to a claim of defective notice. There, as here, the plaintiffs claimed that the notice of the plan conversion to a cash balance formula violated the section 204(h) because it failed to explain to participants that the new formula would reduce the rate of future benefit accruals for some employees. The court rejected this argument on the grounds that the applicable regulations did not require the notice to
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discuss how individual benefits would be affected by the amendment. 477 F.3d at 7273. My reading of the relevant regulations is consistent with this view. Since the 1996 letter and brochure were adequate under the law at the time, Plaintiffs’ Claim IV fails as a matter of law.
C. Claim V - Summary Plan Description Plaintiffs claim that Defendants violated 29 U.S.C. § 1022, which requires that a summary plan description (“SPD”) be distributed to all plan participants and that the SPD be “sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan.” 29 U.S.C. § 1022(a). Plaintiffs contend that the SPD did not disclose that the amended plan “(a) cause[d] older participants to earn no additional benefits beyond those already earned; (b) significantly reduce[d] the rate of future benefit accruals; and (c) change[d] the basis for benefits to year-by-year salary, whereas the ‘old’ formula based all benefits on compensation a highest pay base averaging period.” Complaint ¶ 56. In addition, Plaintiffs allege that the SPD did not offer comparisons of benefits under the old and new formula that would have shown disadvantages of the new plan. Complaint ¶ 57. Plaintiffs also allege that the SPD is not written in a manner calculated to be understood by the average plan participant and does not sufficiently apprise participants of the rights and obligations. Complaint ¶ 57. Finally, Plaintiffs contend that the failure to disclose the disadvantages of the new plan violated the fiduciary duty under 29 U.S.C. § 1104(a)(1). Defendants move for dismissal of this claim on the grounds that the applicable statute and regulations do not require this information to be
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disclosed. Among the specific requirements of section 1022 is that participants be informed
of “circumstances which may result in disqualification, ineligibility, or denial or loss of benefits.” 29 U.S.C. § 1022(b). This issue, then, reduces to the question of whether “loss” includes the possibility of a wear away effect or that future benefits under an amended plan will be less generous than they were under the previous formula. The regulations for this section appear to imply that such information might need to be disclosed, as they provide that “[a]ny description of exception, limitations, reductions, and other restrictions of plan benefits shall not be minimized, rendered obscure, or otherwise made to appear unimportant.” 29 C.F.R. § 2520.102-2(b) (emphasis added). The parties have not provided any other case law that sheds light on this issue. Accordingly, I cannot conclude based on the pleadings alone whether the SPD violated section 1022. However, as discussed further below, the mere technical violation of section 1022 does not necessarily entitle Plaintiffs to any substantive relief. 2. Motion for Class Certification
Plaintiffs filed a motion seeking class certification for all of their claims. Plaintiffs propose a class defined as any persons who: (1) are current or former El Paso employees; (2) participated in the pension plan on or after the January 1, 2002 date on which the plan was fully converted to a cash balance formula; and (3) will be over age 40 as of the date of judgment. Complaint ¶ 10. As a result of my ruling on Defendants’ Motion to Dismiss and my conclusions above, only two claims remain pending: Claim I, alleging that the wear away period violates the ADEA, and Claim V, alleging that the
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SPD violates ERISA section 102 (29 U.S.C. § 1022). Both claims primarily concern the wear away period and other effects of the transition from the previous benefits calculation formula to the cash balance formula on certain participants’ benefits. On the condition that Plaintiffs submit a notice containing an amended class definition consistent with my discussion below, I will grant their motion in part.
I will first address Plaintiffs’ request for conditional approval of an ADEA collective action. Plaintiffs’ only remaining ADEA claim concerns the wear away effect, whereby the benefits of some participants did not increase until the value of their calculated benefits under the cash balance formula exceeded their frozen benefits under the old formula. Accordingly, the only participants who could possibly have claims similar to Plaintiffs’ are persons who were participants in the plan before December 31, 1996. Plaintiffs’ class definition is far too broad to be workable for this claim, as it potentially includes numerous individuals who never received benefits under the old formula or who experienced no or minimal wear away. Plaintiffs, in their reply brief, propose to change the class definition as follows:
any and all persons who (1) are current or former El Paso employees; (2) participated in the pension plan before January 1, 1997 and on or after the January 1, 2002 date on which the plan was fully converted to a cash balance formula [with appropriate changes for employees of companies acquired by El Paso after the amendment]; and (3) will be over age 40 as of the court approval. This definition is still too broad, as it does not necessarily limit the class to individuals whose benefits were subject to a wear away period. Nonetheless, since Plaintiffs can remedy this without difficulty, I will address Plaintiffs’ motion on the assumption that the
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above proposed definition will be amended to limit the class to individuals whose benefits under the cash balance formula on or after January 1, 2002 were less than their benefits calculated under the old formula, thus resulting in a de facto benefits freeze.
Class actions under the ADEA are authorized by 29 U.S.C. § 626(b), which provides for a class action where complaining employees are “similarly situated.” Unlike class actions under Rule 23, a class member must “opt in” to the class by giving consent in writing, which must be filed in the court. Id. Approval of an ADEA class action is often completed in two steps: first, a court makes a initial “notice stage” determination of whether plaintiffs are similarly situated. Thiessen v. General Elec. Capital Corp., 267 F.3d 1095, 1003 (10th Cir. 2001). This determination generally “require[s] nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan.” Id. (citations and internal punctuation omitted). At the conclusion of discovery, the court then makes a second determination, utilizing a stricter standard and examining factual distinctions among the class members, and often incorporating the requirements of Rule 23. Id. at 1102-03.
Plaintiffs have adequately pleaded a claim that could qualify as a collective action, since the proposed class members (as amended) were similarly affected by the same amendment to the pension plan. Defendants object to the conditional approval of the collective action on the grounds that Plaintiffs have not shown that all members of the proposed class could have filed a timely charge of discrimination with the EEOC at the time that Plaintiff Tomlinson filed his charge. I conclude this is not an adequate
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basis to deny conditional approval of the class, as this issue is more appropriately examined in the second stage of the certification, where the individual circumstances of the other plaintiffs opting in are examined. See Thiessen, 267 F.3d at 1102 (in second stage analysis, court reviews “whether plaintiffs made the filings required by the ADEA before instituting suit.”)
However, I decline to issue and approve the proposed notices and consent forms at this time. I did not dismiss Plaintiffs’ ADEA claim under Rule 12(b)(6) because there were clearly factual issues regarding when the wear away effect was known or should have been known by Plaintiffs. Nevertheless, the issue remains whether Plaintiff Tomlinson’s charge of discrimination was timely filed and this question should be resolved before the expense and additional discovery occasioned by a collective action are incurred. It appears that discovery has been ongoing in the interval since these motions were filed. Accordingly, I request that Defendants file a summary judgment motion and brief limited to the ADEA statute of limitations issue on or before April 14, 2008. Plaintiffs may file a response brief on or before April 28, 2008. No reply brief will be permitted. In the event I determine that the charge was timely filed or that there are genuine issues of fact about the timeliness, Plaintiffs may resubmit the ADEA collective action notices and consent forms for my approval.
Plaintiffs also seek class certification on their ERISA claims. However, since only Claim V is pending at this time, I question the utility of a class action on this single claim. As I read the complaint, Plaintiffs seek as relief for this claim only a declaration that the SPD did not comply with section 1022, which binds El Paso whether or not the
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claim is litigated individually or in a class action. Tenth Circuit law establishes that in the absence of reliance or prejudice flowing from a faulty plan description, Plaintiffs are not entitled to substantive relief. Chiles v. Ceridian Corp., 95 F.3d 1505, 1519 (10th Cir. 1996). It appears from the allegations in the complaint that any prejudice to Plaintiffs arises from the benefits freeze and reduction of expected future benefits, not from any lack of notice. Moreover, as discussed further below, Plaintiffs did not assert, and effectively disclaimed, any claim for benefits under the plan but rather assert only statutory claims. Accordingly, I will deny the motion for class certification on Claim V without prejudice to Plaintiffs’ refiling their motion to show how a class action would be appropriate. 3. Defendants’ Motion to File the Declaration of Kevin Minor
Defendants move for leave to file a supplemental affidavit in support of their opposition to the motion for class certification. Plaintiffs oppose the motion on the grounds that the affidavit and information contained therein could have been submitted with the original brief.
The affidavit is from Kevin Minor, an employee of Mercer Human Resource Consulting, which serves as Defendants’ actuary in connection with the pension plan. The affidavit addresses hypothetical members of the class, as originally defined in Plaintiffs’ complaint, to show how many of them would or would not experience a wear away effect in their pension benefit accruals.
I will deny the motion as moot. Because of the dismissal of several claims and because Plaintiffs conceded their class description was overly broad, the calculations
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offered in the affidavit do not add anything of substance to my analysis on the class certification issues. 4. Defendants’ Motion to Strike New Arguments Raised in Plaintiffs’ Reply
Finally, Defendants seek to strike the “new” arguments made in Plaintiffs’ reply brief in support of their motion for class certification. Defendants argue that in the reply brief, Plaintiffs essentially sought to amend their class definition, which they should not be permitted to do in a reply. Plaintiffs’ proposed amendment results from Plaintiffs’ concession that their class definition was overbroad. As discussed above, I consider the new definition to be more appropriate, although still needing further refinement, and helpful in my determination of the motion for class certification. Accordingly, I will deny this portion of the motion.
Defendants also object to Plaintiffs’ apparently asserting, for the first time, that they may be seeking benefits under section 502(a)(1)(B) of ERISA.2 Although this discussion was in relation to claims that are now dismissed, I agree with Defendants that Plaintiffs’ complaint does not indicate that they are seeking benefits under section 502(a)(1)(B) and that indeed Plaintiffs specifically denied that they were asserting such claims when arguing that they did not need to exhaust their administrative remedies. Plaintiffs’ Response to Motion to Dismiss (doc no 20). Accordingly, unless Plaintiffs seek leave to amend their complaint to expressly assert claims under section
2Section 502(a)(1)(B) allows a participant or beneficiary to bring a civil action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). However, a prerequisite to a section 502(a)(1)(B) claim is that the claimant exhaust administrative remedies provided in the plan. Held v. Mfrs. Hanover Leasing Corp., 912 F.2d 1197, 1206 (10th Cir. 1990).
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502(a)(1)(B) and such motion is granted, such claims are not at issue in this litigation. To the extent that Defendants’ motion seeks clarification in this regard, it is granted.
Accordingly, it is ordered: 1. Defendants’ Motion for Judgment on the Pleadings Pursuant to Federal Rule of
Civil Procedure 12(c) (doc no 128) is granted in part and denied in part. Plaintiffs’ Claims II and IV are dismissed for failure to state a claim. Plaintiffs’ Claim I and Claim V remain pending. 2. Plaintiffs’ Motion to Certify Class and Conditional Approval of ADEA Collective Action (doc no 107) is granted in part and denied in part without prejudice. Plaintiffs are entitled to conditional approval of their ADEA collective action upon my satisfaction that the claim is not barred by the statute of limitations. Defendants shall file a limited motion for summary judgment (not to exceed 10 pages) concerning the timeliness of Plaintiff Tomlinson’s charge of discrimination on or before April 14, 2008. Plaintiffs may file a response brief on this issue (not to exceed 10 pages) on or before April 28, 2008. No reply brief shall be filed. Plaintiffs’ motion for class certification of the remaining ERISA claim (Claim V) is denied without prejudice. 3. Plaintiffs shall file a notice amending their class definition in compliance with this order on or before March 31, 2008 4. Defendants’ Motion to File the Declaration of Kevin Minor (doc no 130) is denied as moot. 5. Defendants’ Motion to Strike New Arguments Raised in Plaintiffs’ Reply (doc no
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141) is granted in part and denied in part. The motion is denied to the extent it seeks to preclude Plaintiffs’ proposed amended class definition. The motion is granted to the extent it seeks to preclude recovery by Plaintiffs pursuant to 29 U.S.C. § 1132(a)(1)(B). DATED at Denver, Colorado, on March 19, 2008.
BY THE COURT:
s/ Walker D. Miller United States District Judge

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 Case 1:04-cv-02686-WDM-CBS Document 359 Filed 08/28/09 USDC Colorado Page 1 of 8
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO SENIOR JUDGE WALKER D. MILLER
Civil Action No. 04-cv-02686-WDM-MEH WAYNE TOMLINSON, ALICE BALLESTEROS, and GARY MUCKELROY, individually and on behalf of all others similarly situated,
Plaintiffs, v. EL PASO CORPORATION, and EL PASO PENSION PLAN,
Defendants.
ORDER ON MOTION TO ALTER OR AMEND JUDGMENT Miller, J.
This matter is before me on the Plaintiffs’ Motion to Alter or Amend Judgment Entered on January 23, 2009 (doc no 313). Defendants oppose the motion. For the reasons that follow, the motion will be granted.
The facts of this case are fully set forth in my most recent order (doc no 311) disposing of Plaintiffs’ claims. In short, this case arises out of El Paso Corporation’s conversion of its defined benefit pension plan, in particular one based on a final average pay formula to one based on a cash balance formula. Under the old plan, the amount of a retiree’s monthly pension was based upon their years of credited service and a final average of salary. Under the amended plan, this amount is based upon the amount of credits employees accumulate throughout their years of service. A five-year transition period was used before full implementation of the amended plan whereby participating employees accrued benefits under both the new and old plans, and retiring employees

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could elect whichever option benefitted them the most. Once this transition period expired retirees could still choose either option, but the old average pay plan was “frozen” at whatever benefits the employee had earned as of December 31, 2001. Benefits would continue to accrue under the new cash balance formula.
Plaintiffs’ motion to amend concerns my ruling on Plaintiffs’ claim that the “wear away” period for some workers, meaning the time that overall benefits did not grow until the cash balance benefits caught up to and exceeded the “frozen” benefits due under the old formula, violates the Age Discrimination in Employment Act (ADEA). I granted summary judgment in favor of Defendants based on my conclusion that none of the Plaintiffs had filed a timely charge of discrimination within 300 days of the alleged discriminatory act. Plaintiffs argue that the passage of the Lilly Ledbetter Fair Pay Act of 2009, P.L. 111-2, (the “Ledbetter Act”) which was signed into law shortly after my order, modifies the time limit for when a charge of discrimination needs to be filed.
Standard of Review A motion to alter or amend a judgment pursuant to Fed. R. Civ. P. 59(e) should be granted only to address (1) an intervening change in the controlling law; (2) new evidence previously unavailable; or (3) the need to correct clear error or prevent manifest injustice. Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Such a motion is not an appropriate vehicle to “revisit issues already addressed or advance arguments that could have been raised in prior briefing.” Id. See also Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997) (“A Rule 59(e) motion to alter or amend the judgment should be granted only ‘to correct manifest errors of law or to present newly discovered evidence’”) (citations omitted). Because the Ledbetter Act is
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a change in the controlling law, which appears to be retroactive in application, it is appropriate for me to consider the effect of this statute on my previous ruling.
Discussion As I previously noted, Wayne Tomlinson is the only named plaintiff to file a charge discrimination with the Equal Employment Opportunity Commission (“EEOC”), a prerequisite to suit under the ADEA. There is no dispute that even giving Mr. Tomlinson the benefit of the earliest possible filing date, June 16, 2004, his charge would have to encompass discriminatory conduct occurring in the previous 300 days, or after August 20, 2003. 29 U.S.C. § 626(d)(2) (aggrieved employee must file a charge with the EEOC within 300 days of the alleged unlawful discriminatory practice). I concluded that the discriminatory act triggering the need to file a charge was the amendment to the plan, which occurred effective January 1, 1997 and was complete in December 2001. It was undisputed that Mr. Tomlinson understood before 2001 that the wear away effect would occur in his case and that he received notification in September 1999 which clearly showed, in bar graph form, the time it would take for his cash balance account to catch up to his frozen pre-conversion benefit. Plaintiffs argued that the discriminatory act occurred each time benefits were calculated. I rejected this argument in part based on the decision of the United States Supreme Court in Ledbetter v. Goodyear Tire and Rubber Company, 550 U.S. 618 (2007), which concerned discrimination in pay. Relying on Ledbetter, I held that “Plaintiffs’ cause of action was triggered by the adoption of the cash balance plan, which was complete no later than December 31, 2001. Because the discriminatory act and Mr. Tomlinson’s actual knowledge of that act and its alleged disparate effect on older workers occurred more than 300 days before he filed his
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charge of discrimination, this claim is time-barred.” January 21, 2009 Order (doc no 313).
The Ledbetter Act was passed in response to the Ledbetter decision, which Congress determined was unduly restrictive with respect to the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices. P.L. 111-2, Sec. 2 Findings. It amends the ADEA, and other non-discrimination statutes, by adding the following language:
For the purposes of this section, an unlawful practice occurs, with respect to discrimination in compensation in violation of this Act, when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting whole or in part from such a decision or other practice. 29 U.S.C. § 626 (3). The Act takes effect as if enacted on May 28, 2007 and is intended to apply to all claims pending on or after that date. P.L. 111-2, Sec. 6 Effective Date. Defendants argue that the Ledbetter Act is not intended to apply to pensions, as supported by the Supreme Court’s holding in Florida v. Long, 487 U.S. 223 (1988), and that Plaintiffs still have not identified a discrete discriminatory act occurring within 300 days of the charge of discrimination that would support a claim. The authority provided by both Plaintiffs and Defendants persuades me that my reliance on the Ledbetter decision may have been misplaced. The legislative history of the Ledbetter Act, as well as the reasoning in Florida v. Long, demonstrates the differences between pension and paycheck cases. As noted in Long,
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In a salary case . . . each week's paycheck is compensation for work presently performed and completed by an employee. Further, the employer does not fund its payroll on an actuarial basis. By contrast, a pension plan, funded on an actuarial basis, provides benefits fixed under a contract between the employer and retiree based on a past assessment of an employee's expected years of service, date of retirement, average final salary, and years of projected benefits. In the pension fund context, a continuing violation principle in every case would render employers liable for all past conduct . . . . We cannot recognize a principle of equitable relief that ignores the essential assumptions of an actuarially funded pension plan.
487 U.S. at 239. In Long, the Supreme Court refused to apply a continuing violation
principle to a pension plan, distinguishing the case from the “pattern and practice”
analysis of Bazemore v. Friday, 478 U.S. 385 (1986).1 Id. Similarly, the Ledbetter Act
expressly provides that it is not “intended to change current law treatment of when
pension distributions are considered paid,” P.L. 111-2 Section 2 Findings, at (4). This
indicates that the Congress understood that there are significant differences between
compensation and retirement benefits. This is borne out in the legislative history, in
which Long is cited for the proposition that while a paycheck scheme is applied to every
paycheck, a pension structure is applied only once, when the employee retires, and the
pension checks merely flow from that single application. H.R. Report 110-237 at 18.
Similarly, the policy justifications for enacting the Ledbetter Act include the difficulty of
detecting pay discrimination, since pay-setting decisions are unlikely to be viewed as
discriminatory and information about comparators is generally confidential. Id. at 7.
1The Supreme Court has recently confirmed that Bazemore is a limited holding. A T & T Corp. v. Hulteen, 129 S. Ct. 1962, 1972 (2009). Hulteen, however, does not shed any light on the issue before me, which is whether the Ledbetter Act applies in these circumstances.
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Here, by contrast, the wear away effect was apparent as early as 1999, as was the alleged correlation to older employees with larger pension balances under the old formula.
I note, however, that this case does not concern payment of retirement benefits pursuant to a retirement plan, which was the focus of Long, but rather the rate of accrual of benefits. The Ledbetter Act preserves the existing law concerning when a discriminatory pension distribution or payment occurs, i.e., upon retirement, not upon the issuance of each check. Mr. Tomlinson’s charge of discrimination, however, was filed when he was an active employee and did not concern payment of retirement benefits. Accordingly, it does not appear that either Bazemore or Long is controlling here.
In the absence of further authority indicating otherwise, I conclude that the plain language of the Ledbetter Act may apply in these circumstances and that my previous analysis regarding the timeliness of the charge of discrimination cannot stand. The Act covers “wages, benefits, or other compensation,” which appears to include employer contributions to a pension plan. It provides that a discriminatory act occurs when an individual is “affected” by the application of a discriminatory compensation decision or other “practice,” which could plausibly include the accrual of pension benefits. There does not appear to be any dispute that Mr. Tomlinson accrued a pay credit within 300 days of his charge of discrimination, since he did not retire until several years after his charge. Because that pay credit allegedly did not result in any increase to his pension benefit during the wearaway period, it would appear that this is an application of an allegedly discriminatory practice affecting Plaintiff, and could plausibly bring it within the
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ambit of the Ledbetter Act. In addition, Defendants do not contest that Plaintiffs’ ADEA claim may have been pending on May 28, 2007, the effective date of the Ledbetter Act, since this lawsuit was initiated in 2004. Therefore, the portion of my order granting Defendants’ Motion for Summary Judgment on Plaintiffs’ Claim 1, violation of the ADEA, is inconsistent with the Act and must be reversed.
Because it will now be necessary to consider the claim on the merits, I conclude that Defendants should be permitted to file a new motion for summary judgment. In particular, I note that the relatively recent arguments and authority contained in Hurlic v. Southern Calif. Gas Co., 539 F.3d 1024 (9th Cir. 2008) would be pertinent. I note also that the Supreme Court recently addressed the framework for analyzing ADEA claims in Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343 (2009), which may affect the resolution of Plaintiffs’ ADEA claim.
Accordingly, it is ordered: 1. Plaintiffs’ Motion to Alter or Amend Judgment (doc no 313) is granted. My
January 21, 2009 order (doc no 311) on Plaintiffs’ Motion to Reconsider and Motions for Summary Judgment is amended to deny Defendants’ Motion for Summary Judgment on Plaintiffs’ ADEA claim (Claim 1). I do not find that Plaintiffs’ ADEA claim is barred for failure to timely file a charge of discrimination with the EEOC. The Clerk’s Judgment (doc no 312) shall be vacated. 2. Plaintiffs’ Motion to Strike Amended Motion for Summary Judgment on ADEA Claim (doc no 331) is granted. Defendants’ Amended Motion for Summary Judgment on ADEA Claim (doc no 324) shall be stricken. The
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Motion for Leave to File Excess Pages (doc no 327) is denied as moot. 3. Defendants may file a renewed motion for summary judgment on the
ADEA claim (Claim 1), within 20 days of the date of this order. Response and reply briefs shall be filed in accordance with the Federal Rules of Civil Procedure and the Local Rules of this court. DATED at Denver, Colorado, on August 28, 2009.
BY THE COURT:
s/ Walker D. Miller United States Senior District Judge

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 Case 1:04-cv-02686-WDM-MEH Document 108 Filed 03/22/2007 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO JUDGE WALKER D. MILLER
Civil Action No. 04-cv-02686-WDM-MEH
WAYNE TOMLINSON, ALICE BALLESTEROS, and GARY MUCKELROY, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
EL PASO CORPORATION, and EL PASO PENSION PLAN,
Defendants.

ORDER ON MOTION TO DISMISS

Miller, J.

This matter is before me on a motion filed by Defendants El Paso Corporation

and El Paso Pension Plan (collectively El Paso) on March 30, 2005, requesting

dismissal of some or all of Plaintiffs’claims, a more definite statement of Plaintiffs’

Second Claim, or an order striking Plaintiffs’jury demand. Upon review of the parties’

filings, I conclude oral argument is not required. For the reasons that follow, the motion

will be granted to the extent it seeks dismissal of Plaintiffs’Third Claim, and otherwise

denied.

Background1

This case arises out of El Paso Corporation’s conversion of its pension plan from

1 As is appropriate in the context of a motion to dismiss, the following facts are taken from Plaintiffs’allegations.

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a final average pay formula, to a cash balance formula. Under the old plan, the amount of a retiree’s monthly pension was based upon their years of credited service and a final average of salary. Under the new plan, this amount is based upon the amount of credits employees accumulate throughout their years of service. Each participating employee is given a hypothetical account, and each quarter the employee earns “pay credits”based upon a percentage of their salary, and “interest credits”based upon the yield of a five-year U.S. Treasury Bond. See generally, Register v. PNC Fin. Servs. Group, Inc., 477 F.3d 56, 61-63 (3d Cir. 2007) (comparing and contrasting traditional defined-contribution plans, traditional defined-benefit plans, and cash balance plans).
During a transition period between January 1, 1997, and December 31, 2001, participating employees accrued benefits under both the new and old plans, and retiring employees could elect whichever option benefitted them the most. Once this transition period expired retirees could still choose either option, but the old plan was “frozen”at whatever benefits the employee had earned as of December 31, 2001.
In this putative class action,2 Plaintiffs allege that El Paso set the initial cash balance accounts for older, longer-service employees at levels significantly below the value of their accumulated annuities under the old plan. Thus, Plaintiffs allege that the freezing of old plan accruals discriminated against older workers in violation of the Age Discrimination in Employment Act (ADEA). In addition, Plaintiffs claim that the new plan violates various provisions of the Employee Retirement Income Security Act
2 Plaintiffs propose a class defined as any persons who: (1) are current or former El Paso employees; (2) participated in the pension plan on or after the January 1, 2002 date on which the plan was fully converted to a cash balance formula; and (3) will be over age 40 as of the date of judgment.
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(ERISA). Standard of Review
Dismissal pursuant to Fed. R. Civ. P. 12(b)(6) is only appropriate “when it appears beyond doubt that the plaintiff could prove no set of facts entitling it to relief.” Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 870 (10th Cir. 1992). The court “must accept as true all well-pleaded facts, and construe all reasonable allegations in the light most favorable to the plaintiff.” United States v. Colorado Supreme Court, 87 F.3d 1161, 1164 (10th Cir. 1996).
Discussion 1. Statute of Limitations
It is undisputed that the Plaintiffs are required to file a charge of age discrimination with the EEOC within three hundred days of the date the alleged unlawful practice occurred, see 29 U.S.C. § 626(d)(2); Cruz v. Bd. of Educ., 537 F. Supp. 292, 294 (D. Colo. 1982), but the parties disagree on when this limitations period began to run. According to El Paso, this court is bound by Raymond v. Mobil Oil Corp., 7 F.3d 184 (10th Cir. 1993), to find that Plaintiffs’ADEA claim accrued the date the new plan amendments were adopted — January 1, 1997.
I disagree. In Raymond, the Tenth Circuit did not significantly discuss this issue, but rather adopted the reasoning from a case it found to be materially indistinguishable — Christopher v. Mobil Oil Corp., 950 F.2d 1209 (5th Cir. 1992). Id. at 186. And while Christopher Court found the date of accrual to be the date the new plan was announced, it did so because the announcement in that case told the employees all
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they needed to know in order to maintain their claim for constructive discharge. Christopher, 950 F.2d at 1214-1215; see also First Nat’l Bank & Trust Co. v. Farmland Indus., Inc., 3 F.3d 1366, 1369 (10th Cir. 1993) (“A limitations period begins to run from the time a cause of action first accrues, which is generally the time that a suit may first be maintained thereon.”). In contrast it is not clear in this case, when Plaintiffs knew or should have known enough to maintain an ADEA claim against El Paso. Although Plaintiffs’Complaint indicates that in October of 1996, Plaintiffs received a brochure saying something about a new “cash balance”formula (Complaint, Docket No. 1, at ¶ 17), Plaintiffs claim that this brochure said nothing about a freeze in accruals under the old plan, and that until they commenced this action, they never received an actual copy of the new plan. At this stage of the case, I cannot conclude that there exists no set of facts where it would be reasonable to receive such a brochure and not inquire further. Therefore, dismissal of Plaintiffs’ADEA claim based upon time limitations would be inappropriate. 2. The Bona Fide Plan Exception
Next, El Paso argues that Plaintiffs’ADEA claim is barred because their plan is exempt from suit as a bona fide plan under 29 U.S.C. § 623(f). This subsection makes it permissible for employers:
to observe the terms of a bona fide employee benefit plan — (i) where, for each benefit or benefit package, the actual amount of payment made or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker, as permissible under [ 29 C.F.R. § 1625.10].
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Id.3 According to El Paso, paragraph 23 of the Complaint establishes that the new plan meets the “cost incurred”prong of this test, since it clearly indicates that older workers actually receive higher pay credits than younger employees do. El Paso does not, however, cite any caselaw indicating that a cash balance formula like the one implemented here is immune from suit as a bona fide plan. And, it is far from clear that the hypothetical payments made to older employees’cash balance accounts (or “pay credits”attributed to these accounts) should qualify as a “cost incurred”under § 623(f), especially if the company knows that the vast majority of older workers will never cash in these “payments”but will rather elect the (now-frozen) benefits they had earned under the old plan. Therefore, I conclude that El Paso has failed to demonstrate entitlement to relief, and its motion will therefore be denied as to this issue. 3. Plaintiffs’Claim that Cash Balance Plans Violate ERISA (Claim Three)
Under El Paso’s cash balance plan, as with all cash balance plans, if a younger worker is given the same amount of interest credits as an older worker, the younger worker will, by the time she reaches normal retirement age, have realized a greater benefit from her interest credits than the older worker did by the time he reached normal retirement age (sometime earlier). According to Plaintiffs, this aspect of El Paso’s cash balance plan violates ERISA. Specifically, Plaintiffs’point to 29 U.S.C. § 1054(b)(1)(H), which provides that plans do not comply with ERISA “if, under the plan,
3 29 C.F.R. § 1625.10 in turn provides that plans will be considered compliant with § 623(f)(2) if “the actual amount of payment made, or cost incurred, in behalf of an older worker is equal to that made or incurred in behalf of a younger worker, even though the older worker may thereby receive a lesser amount of benefits or insurance coverage.”
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an employee's benefit accrual is ceased, or the rate of an employee's benefit accrual is reduced, because of the attainment of any age.”(emphasis added) In response, El Paso argues that Plaintiffs’Claim should be dismissed because it is entirely dependant upon a faulty interpretation of § 1054(b)(1)(H).
There has been a great deal of litigation over the meaning of the words “rate of . . . benefit accrual”in the context of cash balance plans, and the courts do not always agree. The majority have held that the phrase refers to what an employer puts into a participants account. Under this interpretation, so long as an employer gives older employees at least as many interest credits as it does a younger employee, § 1054(b)(1)(H) is not violated, and the disparity that Plaintiffs complain of is simply the unsurprising result of the time-value of money. See Register v. PNC Fin. Servs. Group, Inc., 477 F.3d 56 (3d Cir. 2007); Cooper v. IBM Pers. Pension Plan, 457 F.3d 636 (7th Cir. 2006); Drutis v. Quebecor World (USA), Inc., 459 F. Supp. 2d 580 (E.D. Ky. 2006); Laurent v. PriceWaterhouseCoopers LLP, 448 F. Supp. 2d 537 (S.D.N.Y. 2006); Hirt v. Equitable Ret. Plan for Employees, Managers & Agents, 441 F. Supp. 2d 516 (S.D.N.Y. 2006); Register v. PNC Fin. Servs. Group, Inc., No. 04-CV-6097, 2005 WL 3120268, (E.D. Pa. Nov. 21, 2005); Tootle v. ARINC, Inc., 222 F.R.D. 88 (D. Md. 2004); Eaton v. Onan Corp., 117 F. Supp. 2d 812 (S.D. Ind. 2000). Under the minority interpretation, however, “rate of . . . benefit accrual”is equivalent to “accrued benefit”— a term defined in § 1002(23)(A) as an amount “expressed in the form of an annual benefit commencing at normal retirement age,”and the disparity described above constitutes a violation of § 1054(b)(1)(H). See Parsons v. AT&T Pension Benefit Plan, No.
6

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3:06CV552 (JCH), 2006 WL 3826694 (D. Conn. Dec. 26, 2006) (slip op.); In re Citigroup Pension Plan ERISA Litig., — F. Supp. 2d — , 2006 WL 3613691 (S.D.N.Y. Dec.12, 2006); In re J.P. Morgan Chase Cash Balance Litig., 460 F. Supp. 2d 479 (S.D.N.Y. 2006); Richards v. FleetBoston Fin. Corp., 427 F. Supp. 2d 150 (D. Conn. 2006); Cooper v. IBM Pers. Pension Plan, 274 F. Supp. 2d 1010 (S.D. Ill. 2003) (abrogated by Cooper, 457 F.3d at 636).4
Having thoroughly considered the alternatives, I am convinced by those courts that have adopted the majority interpretation. In particular, I agree with the Third and Seventh Circuits that the minority interpretation results in an untenable discrepancy, making it permissible for a younger employee in a defined-contribution plan to benefit from the time-value of money, while making it illegal for a younger employee in a cash balance plan to do the same. See Register, 477 F.3d at 69; Cooper, 457 F.3d at 638; see also Am. Tobacco Co. v. Patterson, 456 U.S. 63, 71 (1982) (“Statutes should be interpreted to avoid untenable distinctions and unreasonable results whenever possible.”). Therefore, Plaintiffs’Third Claim will be dismissed. 4. El Paso’s Motion for a More Definite Statement
Next, El Paso argues that Plaintiffs’Second Claim is so vague and unintelligible that it cannot reasonably be expected to respond absent an order for a more definite statement. An order for a more definite statement is only appropriate when the complaint “is so vague or ambiguous that a party cannot reasonably be required to
4 Due to the developing nature of the caselaw regarding this issue, both parties have submitted multiple supplements to their original briefs, and have filed multiple motions for leave to do so. In considering this issue, I have considered each of these supplements, and the motions for leave will therefore all be granted.
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frame a responsive pleading.” Fed. R. Civ. P. 12(e). In this case, I agree with Plaintiffs that El Paso’s six-page brief on this issue demonstrates that it is fully capable of framing a response to Claim Two, and a more definite statement is therefore unnecessary. 5. The Pension Plan as a Party
El Paso further argues that Plaintiffs have failed to make any cognizable claims against the Pension Plan itself, and that the Plan should therefore be dismissed. I disagree. Although Plaintiffs’Complaint could be more precise in identifying which claims are brought against which defendants, it is clear that Plaintiffs seek a declaration that the Pension Plan itself violates various ERISA provisions. Accordingly, it makes sense to name the Plan as a defendant, as is a common practice in this type of litigation. See e.g., Register, 477 F.3d at 56 (naming the plan as a defendant); Cooper, 457 F.3d at 636 (same). 6. Exhaustion of Administrative Remedies
In addition, El Paso argues that Plaintiffs’Complaint should be dismissed because Plaintiffs failed to exhaust their administrative remedies prior to bringing this lawsuit. In Held v. Mfrs. Hanover Leasing Corp., 912 F.2d 1197, 1206 (10th Cir. 1990), the Tenth Circuit held that “exhaustion of administrative (i.e., company- or plan-provided) remedies is an implicit prerequisite to seeking judicial relief [regarding ERISA claims].” However, the Court additionally held that a claim under 29 U.S.C. § 11405 was an exception to this rule. Id. at 1205.
5 § 1140 generally prohibits punishing an employee for the purpose of interfering with the attainment of any benefit.
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In this case, the parties dispute the scope of the exhaustion requirement delineated in Held. According to Plaintiffs, the exhaustion requirement only applies when “a plaintiff [is] alleging a statutory violation as opposed to a mere denial of benefits.” Id. at 1204 (appearing to approve of such a holding in Amaro v. Continental Can Co., 724 F.2d 747 (9th Cir. 1994)). According to El Paso, however, the exhaustion requirement also applies whenever a statutory claim is “‘so closely intertwined with a serious issue requiring interpretation of a benefit plan that a trial court could properly stay the statutory action pending resolution of the issue by the plan fiduciaries.’” Id. at 1205 (quoting with apparent approval from Zipf v. Am. Tel. & Tel., 799 F.2d 889, 894 n.6 (3d Cir. 1986)).
Even if I accept El Paso’s interpretation, however, I still find that it has not demonstrated entitlement to relief. Although El Paso argues in perfunctory fashion that “Plaintiffs’claims are predicated, at least in part, on non-statutory claims”(Defs.’ Motion, Docket No. 10, at 37 n.12), El Paso makes no effort to explain how this is so, and it also fails to develop an argument as to why this case involves a serious issue requiring interpretation of a benefit plan. El Paso’s motion to dismiss will therefore be denied on this issue. 7. El Paso’s Motion to Strike Plaintiffs’Jury Demand
Finally, El Paso moves to strike Plaintiffs’jury demand. El Paso concedes, however, that this request is entirely dependant upon dismissal of Plaintiffs’ADEA claim. As discussed above, I find that dismissal of the ADEA claim is inappropriate, and I will therefore deny El Paso’s motion to strike as well.
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Accordingly, it is ordered: 1. Defendants’motion for leave to file a response brief, filed November 15, 2006
(Docket No. 86), is granted and the attached brief has been considered in ruling on Defendants’motion to dismiss Claim Three. 2. Defendants’motion for leave to file a reply brief, filed November 16, 2006 (Docket No. 87), is granted and the attached brief has been considered in ruling on Defendants’motion to dismiss Claim Three. 3. Defendants’motion for leave to file a response brief, filed December 20, 2006 (Docket No. 93), is granted and the attached brief has been considered in ruling on Defendants’motion to dismiss Claim Three. 4. The motion filed by Defendants on March 30, 2005 (Docket No. 10), requesting dismissal of some or all of Plaintiffs’claims, a more definite statement of Plaintiffs’Second Claim, and an order striking Plaintiffs’jury demand, is granted to the extent it seeks dismissal of Plaintiffs’Third Claim, and is otherwise denied. 5. This case remains pending for trial on Plaintiffs’First, Second, Fourth, and Fifth Claims. DATED at Denver, Colorado, on March 22, 2007.
BY THE COURT:
s/ Walker D. Miller United States District Judge

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 Case 1:04-cv-02686-WDM-CBS Document 311 Filed 01/21/09 USDC Colorado Page 1 of 17
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO SENIOR JUDGE WALKER D. MILLER
Civil Action No. 04-cv-02686-WDM-MEH WAYNE TOMLINSON, ALICE BALLESTEROS, and GARY MUCKELROY, individually and on behalf of all others similarly situated,
Plaintiffs, v. EL PASO CORPORATION, and EL PASO PENSION PLAN,
Defendants.
ORDER ON MOTION TO RECONSIDER AND MOTIONS FOR SUMMARY JUDGMENT
Miller, J. This matter is before me on the Plaintiffs’ Motion for Reconsideration of March
19, 2008 Decision (doc no 218) and two motions for partial summary judgment (doc nos 220 and 232) filed by Defendants El Paso Corporation and El Paso Pension Plan (collectively “El Paso”). On March 19, 2008, I ruled on a number of then pending motions and dismissed several of Plaintiffs’ claims under the Employee Retirement Income Security Act (“ERISA”), leaving pending Plaintiffs’ claim under the Age Discrimination in Employment Act (“ADEA”) and a single ERISA claim regarding the adequacy of a summary plan description. Doc no 213. Upon review of the parties’ filings and supplemental authority, I conclude oral argument is not required. For the reasons that follow, the Motion for Reconsideration will be denied. Defendants’ motions for summary judgment will be granted.

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Background1 This case arises out of El Paso Corporation’s conversion of its defined benefit pension plan, in particular one based on a final average pay formula to one based on a cash balance formula. Under the old plan, the amount of a retiree’s monthly pension was based upon their years of credited service and a final average of salary. Under the amended plan, this amount is based upon the amount of credits employees accumulate throughout their years of service. Each participating employee is given a hypothetical account, and each quarter the employee earns “pay credits” based upon a percentage of their salary, and “interest credits” based upon the yield of a five-year U.S. Treasury Bond. See generally, Register v. PNC Fin. Servs. Group, Inc., 477 F.3d 56, 61-63 (3d Cir. 2007) (comparing and contrasting traditional defined-contribution plans, traditional defined-benefit plans, and cash balance plans). During a transition period between January 1, 1997, and December 31, 2001, participating employees accrued benefits under both the new and old plans, and retiring employees could elect whichever option benefitted them the most. Once this transition period expired retirees could still choose either option, but the old average pay plan was “frozen” at whatever benefits the employee had earned as of December 31, 2001. Benefits would continue to accrue under the new cash balance formula. In this putative class action, Plaintiffs allege that El Paso set the initial cash balance accounts for older, longer-service employees at levels significantly below the value of their accumulated annuities under the old plan. One effect of the transition was
1 For simplicity, I am reprinting the statement of facts from my March 19, 2008 Order on Motion for Judgment on the Pleadings and Motion for Class Action Certification (doc no 213).
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that for some workers, overall benefits did not grow until the cash balance benefits caught up to and exceeded the “frozen” benefits due under the old formula. This period is commonly referred to as a “wear away.”
Participants were notified of the changes to the plan in October 1996 by way of a letter and brochure. These documents informed participants that the amendments to the plan would take effect January 1, 1997, explained the mechanics of the cash balance approach and the five-year transition period, and gave examples of benefit accruals. In addition, a Summary Plan Description (“SPD”) was distributed to employees in August 2002. Plaintiff Wayne Tomlinson filed a charge of discrimination with the EEOC on July 16, 2004.
Plaintiffs’ first claim for relief is based on their allegation that the freezing of old plan accruals discriminated against older workers in violation of the Age Discrimination in Employment Act. Plaintiffs also asserted the following claims under ERISA: Violation of ERISA sections 203(a) and 204(b)(1)(B) (Claim II); Inadequate notice of amendment in violation of ERISA section 204(h) (Claim IV); Inadequate summary plan descriptions (Claim V). I dismissed Plaintiffs’ third claim, that the cash balance plan violated ERISA, on March 22, 2007 (doc no 108) based on arguments and authorities in a Motion to Dismiss filed by Defendants. In my March 19, 2008 order (doc no 213), I dismissed Plaintiffs’ second and fourth claims, which alleged violations of ERISA.
Plaintiffs move for reconsideration of the dismissal of Claim II and Claim IV. Defendants move for summary judgment on Claim I (ADEA) on the grounds that it is time-barred and on Claim V on the grounds that Plaintiffs did not rely on and/or were not prejudiced by the summary plan description for El Paso’s plan and conversion, or,
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alternatively, that the description was adequate. Standard of Review
“The Federal Rules of Civil Procedure do not recognize a ‘motion to reconsider.’ Instead the rules allow a litigant subject to an adverse judgment to file either a motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e) or a motion seeking relief from the judgment pursuant to Fed. R. Civ. P. 60(b).” Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Fed. R. Civ. P. 59(e) will govern when the motion for reconsideration is filed within ten days of the judgment and Fed. R. Civ. P. 60(b) will govern all other motions. Id. Because Plaintiffs’ motion was filed within ten days of my order dismissing Claims II and IV, I will treat it as a Rule 59(e) motion. A motion to alter or amend a judgment pursuant to Fed. R. Civ. P. 59(e) should be granted only to address (1) an intervening change in the controlling law; (2) new evidence previously unavailable; or (3) the need to correct clear error or prevent manifest injustice. Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Such a motion is not an appropriate vehicle to “revisit issues already addressed or advance arguments that could have been raised in prior briefing.” Id. See also Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997) (“A Rule 59(e) motion to alter or amend the judgment should be granted only ‘to correct manifest errors of law or to present newly discovered evidence’”) (citations omitted).
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. A factual issue is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 477 U.S.
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242, 248 (1986). Where “the moving party does not bear the ultimate burden of persuasion at trial,
it may satisfy its burden at the summary judgment stage by identifying ‘a lack of evidence for the nonmovant on an essential element of the nonmovant’s claim.’” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)). Then, “[t]o avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case.” Id.
Discussion 1. Motion to Reconsider
In my March 19, 2008 order, I ruled that El Paso’s plan amendment and resulting wear away period for some employees did not violate the anti-backloading provisions of ERISA (Claim II). Specifically, I determined that the amendment complied with the “133 1/3" rule under 29 U.S.C. § 1054(b)(1), which requires that the value of the benefit accrued in any year may not exceed the value of a benefit accrued in any previous year by more than 33%. These rules are intended to prevent plans from providing low rates of accrual in an employee’s early years of service and concentrating the accrual of benefits in the employee’s later years of service when he is most likely to remain with the firm until retirement. In arriving at this conclusion, I relied in particular on Register v. PNC Fin. Servs. Group, Inc., 477 F.3d 56 (3d Cir. 2007) and Wheeler v. Pension Value Plan for Employees of the Boeing Co., Case No. 06-cv-500-DRH, 2007 WL 2608875 at *12 (S.D. Ill. Sept. 6, 2007). I agreed with the courts in these cases that where a plan is amended, the new amendment is treated as in effect for other years for analyzing
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backloading issues. I also rejected Plaintiffs’ argument that the accrual rates under the pre-amendment and amended plans should be aggregated pursuant to 26 C.F.R. § 1.411(b)-1(a). I considered, but did not rely on, supplemental authority provided by Plaintiffs, specifically the February 1, 2008 Internal Revenue Service Revenue Ruling 2008-7 (Rev. Rul. 2008-7), 2008-7 I.R.B. 419, 2008 WL 274325. In addition, I dismissed Plaintiffs’ claim of inadequate notice under 29 U.S.C. § 1054(h)(1)(A) (Claim IV) on the grounds that El Paso’s notice of the changes to its retirement plan complied with the statute and accompanying regulations as they existed at the time. Plaintiffs ask me to reconsider my analysis of both claims.
With respect to Claim II, the anti-backloading claim, Plaintiffs primarily claim that I erred in rejecting the opinion set forth in the Revenue Ruling 2008-7. In that document, the IRS apparently takes the position that where, as here, a pension plan is converted to a cash balance formula, and the old formula continues for a period in which participants are allowed to continue to accrue benefits (i.e., a “grandfathering” period), the preconversion formula must be considered in addition to the new formula.2 Plaintiffs argue that I must give this agency interpretation deference pursuant to Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
I disagree. Agency opinion letters “do not warrant Chevron-style deference.” Christensen v. Harris County, 529 U.S. 576, 587 (2000). They are, however, “entitled to respect under [ ] Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), but only to the extent that those interpretations have the power to persuade.” Id.
2In contrast, where benefits cease to accrue under the previous plan formula at the same time that the new formula under the cash balance plan begins, as in Register, the IRS agrees that only the new formula should be considered as being in effect.
6

Case 1:04-cv-02686-WDM-CBS Document 311 Filed 01/21/09 USDC Colorado Page 7 of 17
(citations and internal punctuation omitted). As I noted in my original order, I did not find the analysis in the revenue ruling to be persuasive on the question of whether the preand post-conversion formulas had to be aggregated in determining compliance with the 133 1/3 rule.3 Recently, the Ninth Circuit, considering an identical pension plan conversion with grandfathering and wear away periods, also found Revenue Ruling 2008-7 to be unpersuasive and rejected it. Hurlic v. Southern Calif. Gas Co., 539 F.3d 1024 (9th Cir. 2008). The court in Hurlic noted that the IRS provided little in the way of reasoning for requiring aggregation whenever a plan contains a grandfathering provision. Id. at 1034. “It would be an odd result indeed to allow a pension plan which converts to a cash balance formula to freeze pre-conversion benefits immediately but forbid a plan from providing for a grace period in which participants can continue to accrue additional benefits before they are frozen.” Id. at 1035. Moreover, as I also noted in this case, “neither the Plan’s conversion to the cash balance formula nor its grandfather provision conflict with the objective of ERISA’s ‘anti-backloading’ provisions, which is ‘to prevent a plan from being unfairly weighted against shorter-term employees.’” Id. (quoting Register). I agree with the Ninth Circuit on this issue and will not revise my previous order dismissing Claim II.4
3In their reply brief, Plaintiffs also offer correspondence between the IRS and El Paso in which the IRS apparently takes the same position. Although Defendants object to the inclusion of these letters on various evidentiary grounds, I will consider them as documentation of an informal opinion of the agency.
4Finally, I note that, according to supplemental authority provided by the parties, Revenue Ruling 2008-7 applies only for the purposes of IRS tax qualification rules, not for the purposes of on-going ERISA litigation. May 28, 2008 Treasury Department Letter, reprinted in 2008 Tax Notes Today (TNT) 108-17. Moreover, the revenue ruling provides relief from disqualification “for a limited class of plans under which a group of employees specified under the plan receives a benefit equal to the greatest of the
7

Case 1:04-cv-02686-WDM-CBS Document 311 Filed 01/21/09 USDC Colorado Page 8 of 17
I also will not amend my order with respect to Claim V concerning the adequacy
of the notice provided to plan participants. In 1996, when notice of the plan changes
was sent to participants, then existing regulations required only that the notice be
written, set forth the amendment (or a summary thereof), and set forth the amendment’s
effective date. 26 C.F.R. § 1411(d)-6T(1996). Moreover, the regulation expressly did
not require the plan to “explain how much the individual benefit of each participant . . .
will be affected by the amendment.” Id. I concluded that the notice provided was
adequate.
Plaintiffs again argue that the notice expressly had to tell employees about
benefit reductions and that evidence indicates that El Paso did not intend to notify its
employees of a reduction in benefit accruals. Again, however, in light of the express
requirements of the regulations, I see no basis to conclude that El Paso’s conduct violated the law as it existed at the time.5 Plaintiffs again argue as well that the 2001
changes to the notice requirement should have somehow applied to a notice issued in
benefits provided under two or more formulas (an applicable ‘greater-of’ benefit), provided that each such formula standing alone would satisfy an accrual rule of section 411(b)(1)(A), (B), or (C) for the years involved.” 73 F.R. 34665, 34667. This relief applies to plan years beginning before January 1, 2009, which would apparently include El Paso’s plan conversion. Similarly, new proposed regulations clarify that where participants receive the “greater of” benefits calculated under separate formulas, the 133 1/3 test should be applied separately to each formula. 73 F.R. 34665, 34668. I conclude that this approach is more consistent with the express language of the regulations and the intent of the anti-backloading rules.
5Plaintiffs cite Amara v. CIGNA Corp., 534 F.Supp.2d 288 (D.Conn. 2008) for the proposition that information about benefit accrual reductions had to be included in an ERISA § 204 notice in 1996. Amara does not so hold. Rather, the court noted that it did not need to decide whether the notice had to inform participants of such reductions because the notice (as well as other information from the company) was materially misleading. 534 F. Supp. 2d at 339.
8

Case 1:04-cv-02686-WDM-CBS Document 311 Filed 01/21/09 USDC Colorado Page 9 of 17
1996. Plaintiffs’ cited law and argument are unavailing, as I have already determined that the notice and plan amendment were effective before 2001.
I do not perceive any clear error or manifest injustice; moreover, Plaintiffs’ motion does not identify a change in the law or new evidence relevant to my previous dismissal of Claims II and IV. Accordingly, the motion to reconsider will be denied.
2. Claim I - ADEA Defendants move for summary judgment on Plaintiffs’ ADEA claim, arguing that Wayne Tomlinson, the only named plaintiff to file a charge discrimination with the Equal Employment Opportunity Commission (“EEOC”), did not do so in a timely manner. It is undisputed that a timely administrative charge is a prerequisite to suit under the ADEA. Mr. Tomlinson’s charge of age discrimination was filed on July 16, 2004; he also filled out an intake questionnaire on June 16, 2004. Even giving him the benefit of the earliest possible filing date, June 16, 2004, his charge would have to encompass discriminatory conduct occurring in the previous 300 days, or after August 20, 2003. 29 U.S.C. § 626(d)(2) (aggrieved employee must file a charge with the EEOC within 300 days of the alleged unlawful discriminatory practice). Defendants argue that all the relevant alleged discriminatory acts occurred, and were known by Mr. Tomlinson, long before this date. Therefore, they argue, the ADEA claim is time-barred. As noted above, the plan was amended effective January 1, 1997 and the transition period closed on December 31, 2001. In his deposition, Mr. Tomlinson concedes that he understood before 2001 that the wear away effect would occur in his case. Tomlinson Depo., Ex. 6 to Memorandum in Support of Motion for S.J. on Claim I (doc no 221-7) at 68-69. Indeed, he received a statement about his account in
9

Case 1:04-cv-02686-WDM-CBS Document 311 Filed 01/21/09 USDC Colorado Page 10 of 17
September 1999 which clearly showed, in bar graph form, the time it would take for his cash balance account to catch up to his frozen pre-conversion benefit. Ex. 11 to Memorandum in Support of Motion for S.J. on Claim I (doc no 221-12) at P304. In an email dated August 7, 2003, Mr. Tomlinson discusses his belief that the wear away effect is discriminatory and possible litigation. Ex. 12 to Memorandum in Support of Motion for S.J. on Claim I (doc no 221-13). Mr. Tomlinson does not identify any additional conduct or new information about the plan that he obtained within 300 days of filing his charge of discrimination. Defendants argue that the adverse employment action here was the plan conversion, which was complete no later than December 31, 2001. They further argue that Mr. Tomlinson had notice of the alleged discriminatory effects of the implementation of the cash balance plan and the resulting wear away period no later than 1999.
In response, Plaintiffs argue that the amended pension plan represents a “pattern and practice” of age discrimination, which occurred each time benefits were calculated. However, I conclude that this approach is foreclosed by the recent decision of the United States Supreme Court in Ledbetter v. Goodyear Tire and Rubber Company, 550 U.S. 618 (2007). In that case, the plaintiff alleged that her employer had intentionally discriminated against her on the basis of sex by giving her unfavorable performance ratings; as a result, she received smaller pay checks from 1997 onward. She did not file a charge of discrimination until March 1998, beyond the applicable administrative charging period. The court ruled that the plaintiff’s claim was time barred. “[B]ecause a pay-setting decision is a discrete act, it follows that the period for filing an EEOC charge begins when the [pay-setting decision] occurs.” Ledbetter, 127 S. Ct. at 2165. “A new
10

Case 1:04-cv-02686-WDM-CBS Document 311 Filed 01/21/09 USDC Colorado Page 11 of 17
violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination.” Id. at 2169. The court also limited its previous holding in Bazemore v. Friday, 478 U.S. 385 (1986) (per curiam), which permitted an ongoing charging period whenever an employer issues paychecks using a discriminatory pay structure, to circumstances involving a system that is facially discriminatory or not neutrally applied. Id. at 2174.
I agree with Defendants that, here, the conversion of the pension plan to a cash balance plan was a discrete act. Analogous to Ledbetter, the “benefits-setting decision” was implemented when the initial balances and accrual rates in the cash balance plan were set, which occurred long before August 2003. These decisions, and the plan itself, are facially non-discriminatory. Rather, pay credits under the CSP are more generous for older workers and workers with longer term service, not vice versa. Under the plan, pay credits are determined based on an employee’s combined age and years of service; as those increase, the percentage of pay received as a pay credit increases as well. See, e.g., 2002 SPD, Ex. A to Memorandum in Support of Motion for S.J. on Claim V (doc no 233-2) at 8 (showing that pay credits increase from 4% of pay to 7% of pay). Similarly, Plaintiffs have provided no evidence that initial balances were calculated pursuant to a different formula for younger workers. Including a five year grandfathering period and permitting employees to keep the greater of the benefits accrued under either plan also provides a greater advantage to workers with larger accrued benefits under the old plan than does simply freezing benefits at the previous level.
11

Case 1:04-cv-02686-WDM-CBS Document 311 Filed 01/21/09 USDC Colorado Page 12 of 17
Plaintiffs appear to argue that the wear-aways were “standard procedure,” relying on expert reports that show that the wear away effect can prevent an older, longerservice employee from earning additional benefits for many years. Because the “greater of” formulation creates a wear away effect in combination with a number of age-related factors (presumably years of service and salary), Plaintiffs appear to argue that the plan is facially discriminatory. I disagree. As noted in numerous cases that have considered conversions similar to this one, the wear away effect correlates not to age but to the size of the accrued benefits under the old plan, which is affected by both salary and years of service. See, e.g., Custer v. Southern New England Tel. Co., 2008 WL 222558, at *10 (D. Conn. 2008) (“The ‘wear-away’ period is not necessarily longer for older workers; it is longer for workers that have greater frozen benefits. Under the old plan, the size of a worker's frozen benefits is a function of a worker's salary and years of service, not his age.”). A younger employee with more years of service, and/or a higher salary, could be subject to a longer wear away period than an older employee with fewer years of service and/or a lower salary. Plaintiffs offer no evidence to show that two employees, one younger and one older, with the same accrued frozen benefit under the old plan and the same salary, would suffer different wear away periods. Accordingly, I conclude that the plan is facially non-discriminatory.
Because the plan is age-neutral, I conclude that the statute of limitations is governed by Ledbetter, not by Bazemore. Plaintiffs’ cause of action was triggered by the adoption of the cash balance plan, which was complete no later than December 31, 2001. Because the discriminatory act and Mr. Tomlinson’s actual knowledge of that act and its alleged disparate effect on older workers occurred more than 300 days before
12

Case 1:04-cv-02686-WDM-CBS Document 311 Filed 01/21/09 USDC Colorado Page 13 of 17
he filed his charge of discrimination, this claim is time-barred. 3. Claim V - Summary Plan Description Plaintiffs claim that Defendants violated 29 U.S.C. § 1022, which requires that a
summary plan description be distributed to all plan participants and that the SPD be “sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan.” 29 U.S.C. § 1022(a). Plaintiffs contend that the 2002 SPD did not disclose that the amended plan “(a) cause[d] older participants to earn no additional benefits beyond those already earned; (b) significantly reduce[d] the rate of future benefit accruals; and (c) change[d] the basis for benefits to year-by-year salary, whereas the ‘old’ formula based all benefits on compensation a highest pay base averaging period.” Complaint ¶ 56. In addition, Plaintiffs allege that the SPD did not offer comparisons of benefits under the old and new formula that would have shown disadvantages of the new plan. Complaint ¶ 57. Plaintiffs also allege that the SPD is not written in a manner calculated to be understood by the average plan participant and does not sufficiently apprise participants of the rights and obligations. Complaint ¶ 57. Finally, Plaintiffs contend that the failure to disclose the disadvantages of the new plan violated the fiduciary duty under 29 U.S.C. § 1104(a)(1).
As an initial matter, as Defendants point out, the SPD did indeed disclose that the basis for benefits had changed, and Plaintiffs do not dispute this. In addition, Defendants contend that the undisputed evidence shows that Plaintiffs did not rely on the SPD and suffered no prejudice because the information was disclosed in other ways. Chiles v. Ceridian Corp., 95 F.3d 1505, 1519 (10th Cir. 1996) (to secure relief,
13

Case 1:04-cv-02686-WDM-CBS Document 311 Filed 01/21/09 USDC Colorado Page 14 of 17
claimant must show some significant reliance upon, or possible prejudice flowing from, the allegedly faulty description in SPD). In the alternative, Defendants argue that the changes to a plan need only be described in a 204(h) notice, not necessarily in the SPD. Because I agree with Defendants that Plaintiffs do not present evidence giving rise to a genuine issue of material fact regarding reliance or prejudice, I do not address whether additional information had to be contained in the SPD.
Plaintiffs’ deposition testimony establishes that they did not consult the SPD, except for the limited purpose of finding specific information that was contained in the SPD. In response, Plaintiffs assert that it is not established that the Plaintiffs ever received the SPD 6 and contend that Plaintiffs could have heard about the contents of the SPD from other employees. Plaintiffs miss the point. Regardless of the reason, if Plaintiffs did not ever read the SPD, they cannot have been injured by any reliance upon allegedly inadequate information contained therein. Accordingly, I agree that the undisputed evidence shows that Plaintiffs cannot demonstrate reliance upon the allegedly faulty SPD.
I also agree with Defendants that Plaintiffs cannot establish prejudice because they were informed of the reduction in the benefits accrual rate and of the wear away effect through other sources. Plaintiffs’ claim is based on the 2002 SPD. Defendants point to numerous sources of information that disclosed to Plaintiffs that accrual rates would be lower, including a January 11, 1996 document entitled “Employee Update,”
6Plaintiffs argue that “El Paso has provided no evidence that it distributed SPDs with the disclosures of benefit reductions and losses that are required by law.” Response to Motion for S.J. on Claim V (doc no 237) at 10. Plaintiffs, however, do not have a claim based on any alleged failure to properly distribute the SPD.
14

Case 1:04-cv-02686-WDM-CBS Document 311 Filed 01/21/09 USDC Colorado Page 15 of 17
which contains the following: “Effective January 1, 1997, the current pension plan will be converted to a new type of plan called a ‘cash balance plan.’ . . . Under the cash balance plan, employees will earn future benefits at a lower rate than under the current plan.”7 Ex. H to Memorandum in Support of Motion for S.J. on Claim V (doc no 233-9) at 26. In addition, in 1999, as discussed above, each employee received an individualized account statement which showed, in bar graph form, a comparison of the participant’s benefit in the cash balance plan and the previous plan over time until age 65. Ex. I to Memorandum in Support of Motion for S.J. on Claim V (doc no 233-10) at P0047. The bar graph clearly shows the wear away effect, as it shows both the frozen old benefit and the growing cash balance plan benefit at several intervals. In the example provided, the bar graph shows that the cash balance benefit does not exceed the participant’s frozen previous benefit even at age 65. Id. I see no prejudice to Plaintiffs from the alleged failure to disclose in the SPD information that was already disclosed, and even illustrated individually, before the SPD was ever issued. Plaintiffs also have offered no evidence of action they would have taken or not taken, or otherwise avoidable losses incurred, because of the allegedly inadequate SPD.
In response, Plaintiffs argue that additional discovery is needed, specifically to obtain information on how the SPD was drafted and distributed, as well as any intent to conceal benefit reductions. Such evidence, however, would not alter my analysis here,
7I note also that other sources indicate that pension benefits under the new plan will be less generous. For example, in the opening letter to the October 1996 plan highlights brochure, the memo states, “In the past, El Paso was able to provide employees with a very rich retirements benefits package. Our plans still provide excellent benefits, but are no longer at the top of the range.” Ex. 11 to Plaintiffs’ Response to Motion for S.J. on Claim V (doc no 237-12).
15

Case 1:04-cv-02686-WDM-CBS Document 311 Filed 01/21/09 USDC Colorado Page 16 of 17
as it would shed no light on the issues of reliance or prejudice. Accordingly, this request is denied. Plaintiffs also proffer expert reports in which their expert witnesses opine that the SPD does not disclose the reduction of benefit rates and the wear away. Again, this is irrelevant since Defendants have not disputed this. Finally, Plaintiffs contend that the disclosures from other sources were inadequate. I disagree. As noted above, the Defendants clearly notified participants that benefits under the new plan were less generous than under the old plan; in addition, participants had an individualized statement comparing their benefits under both plans over time.
Because Plaintiffs have not demonstrated a genuine issue of material fact regarding any reliance or prejudice resulting from the allegedly defective SPD, I conclude that they are not entitled to any relief even if the SPD did not satisfy ERISA. Accordingly, judgment should enter as a matter of law against Plaintiffs on Claim V.
Accordingly, it is ordered: 1. Plaintiff’s Motion for Reconsideration of March 19, 2008 Decision (doc no
218) is denied. 2. Defendants’ motions for partial summary judgment (doc nos 220 and 232)
are granted. 3. Summary judgment shall enter against Plaintiffs and in favor of
Defendants on Claim I and Claim V. All other claims were previously dismissed.
16

Case 1:04-cv-02686-WDM-CBS Document 311 Filed 01/21/09 USDC Colorado Page 17 of 17
4. Defendants may have their costs. DATED at Denver, Colorado, on January 21, 2009.
BY THE COURT:
s/ Walker D. Miller United States Senior District Judge

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-8 /3( ) ! % ) '%9 . %& % (& .! 8$-+ -+ / .' & ,. @ % * % ,$- '%& .

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9. 9 - ! . ( $,) +$ /3( ) $% %) 8 ) 8+$ + 8 '(& & 3.$ . - %& - & 3.$

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(( 9 -+ - -+ . $ &$ 3 . - $/3 - % 8 .: . ! . 3 $%- - 9 % . ($@ & 3 ($ ) -+ -

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3 % $ % * % ,$- -+ % -+ ) 8 '(& + $, ( 0 + & % - + & -. % $-$ % 3 .$ & %& %

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77

 
 Case 1:04-cv-02686-WDM-CBS Document 221 Filed 04/14/2008 USDC Colorado Page 1 of 11
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 04-CV-02686-WDM-CBS
WAYNE TOMLINSON, ALICE BALLESTEROS, GARY MUCKELROY, individually and on behalf of all others similarly situated,
Plaintiffs, v. EL PASO CORPORATION, and EL PASO PENSION PLAN,
Defendants.
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT ON ADEA CLAIM FOR FAILURE TO FILE A TIMELY
CHARGE OF DISCRIMINATION
Pursuant to Federal Rule of Civil Procedure 56(b) and D.C.COLO.L.Civ.R 56.1, Defendants El Paso Corporation and El Paso Corporation Pension Plan (collectively "El Paso") respectfully submit this Memorandum.
I. STATEMENT OF UNDISPUTED MATERIAL FACTS 1. Prior to January 1, 1997, El Paso maintained a defined benefit pension plan that utilized a final average pay formula to calculate retirement benefits. Benefits under the final average pay formula generally increased along with Participants' years of service and the average of their final years of pay. (Complaint, fflj 15-16.) 2. El Paso converted its pension plan effective January 1,1997 to a cash balance plan ("Amended Plan"). (Exhibit 1, Preamble, p. 1; § 4.1). El Paso described

Case 1:04-cv-02686-WDM-CBS Document 221 Filed 04/14/2008 USDC Colorado Page 2 of 11
the changes to the pension plan in several communications to employees between 1996 and 2001. (Exhibits 2, 3, 4, and 5). Mr. Tomlinson had notice of all facts upon which he rests his ADEA claim at the time he received those communications. (Id.}
3. The Amended Plan provided for a five-year transition period for participants who were active on the date the Plan converted to a cash balance formula. At the start of the transition period (January 1,1997), these Participants were given a cash balance account with a balance equivalent to their benefit under the final average pay formula. (Exhibit 1, § 4.1) During the transition period, these employees accrued benefits under both the new cash balance formula and the old final average pay formula. (Id.)
4. Each of these participants was guaranteed that his or her final pension benefit would never be less than the value of the old final average pay formula as of the conclusion of the five year transition period (December 31, 2001). (Id.) This is known as the Plan's "Minimum Benefit." (Id.)
5. At the end of the five-year transition period, Participants' benefits under the final average pay formula were frozen. Future benefit accruals could then be earned only under the cash balance formula. (Id.) In contrast, employees hired after January 1, 1997 accrued benefits only under the cash balance formula.
6. The last act El Paso engaged in that Mr. Tomlinson relies on in support of his ADEA claim was El Paso's amendment of the pension plan to provide for the Minimum Benefit. That amendment occurred on December 12, 1996, with an effective date of January 1, 1997. (Exhibit 1, p. 72; preamble). Mr. Tomlinson admits that El Paso did not do anything or provide him with any new information that would have allowed him to understand the nature of his claims against El Paso after the close of the transition

Case 1:04-cv-02686-WDM-CBS Document 221 Filed 04/14/2008 USDC Colorado Page 3 of 11
period on December31, 2001. (Exhibits, 162:8-163:10).1 7. On July 16, 2004, Mr. Tomlinson filed a charge of age discrimination with the
Equal Employment Opportunity Commission ("EEOC"). (Exhibit 8). He had an appointment with the EEOC to provide an intake questionnaire on June 16, 2004. (Exhibits) His intake questionnaire was dated June 16, 2004.2 (Exhibit 10). Three hundred days before June 16, 2004 is August 20, 2003.
8. No other Plaintiff or putative collective action member has filed a charge of discrimination with the EEOC. (Complaint, U 39).
II. STANDARD OF REVIEW Fed.R.Civ.P. 56(b) provides that summary judgment shall be granted if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Halprin v. Equitable Life Assur. Soc. of U.S., 267 F.Supp.2d 1030, 1034 (D. Colo. 2003).
III. ARGUMENT A. The Nature Of Plaintiffs ADEA Claim
Plaintiffs benefited from the existence of the Minimum Benefit by earning bigger pension benefits than they would have earned had El Paso not provided a Minimum Benefit. (Exhibit 6, 88:17-89:15; Exhibit 7, 46:6-11). Nevertheless, Plaintiffs claim that the fact that they received the Minimum Benefit discriminated against them in violation of the ADEA.
1 Relevant excerpts of Volumes I and II of the deposition of Plaintiff Wayne Tomlinson are filed as Exhibit 6. Relevant Excerpts of the deposition of Plaintiff Gary Muckelroy are filed as Exhibit 7. 2 While El Paso believes the date Mr. Tomlinson filed his charge of discrimination to be the operative date for purposes of the statute of limitations analysis (see Complaint, fl 39), the earliest date upon which Mr. Tomlinson could be said to have filed appropriatedocumentswith the EEOC is the date he filed his intake questionnaire, or June 16, 2004.

Case 1:04-cv-02686-WDM-CBS Document 221 Filed 04/14/2008 USDC Colorado Page 4 of 11
Specifically, because Plaintiffs earned the Minimum Benefit, there is a period of time during which Plaintiffs observe no net increase in pension benefits while their cash balance accounts catch up to their Minimum Benefit. This is commonly referred to as a "wear-away" period. Younger employees who did not receive a Minimum Benefit, by contrast, continue to observe annual increases in their overall pension benefits because their cash balance accounts do not have a Minimum Benefit to catch up to. Plaintiffs claim that the fact that older workers who earned a Minimum Benefit do not observe increases in their overall pension benefits during a wear-away period, while younger workers who did not earn a Minimum Benefit have no wear-away period, constitutes a violation of the ADEA. B. All Three Plaintiffs Must Rely On Mr. Tomlinson's EEOC Charge
Under the ADEA, an aggrieved employee must file a charge with the EEOC within 300 days of the alleged unlawful discriminatory practice. 29 U.S.C. § 626(d)(2). See also EEOC v. Commercial Office Prods. Co., 486 U.S. 107,110 (1988); Duncan v. Manager, Dep't of Safety, City and County of Denver, 397 F.3d 1300, 1310 (10th Cir. 2005). Failure to comply with this prerequisite bars a plaintiffs claim. See Dartt v. Shell Oil Co., 539 F.2d 1256, 1260-61 (10th Cir. 1976).
Generally speaking, each and every plaintiff must exhaust his or her administrative remedies by filing a timely EEOC charge prior to filing a claim under the ADEA. However, under the "piggybacking" doctrine, a putative collective action member can piggyback on a named plaintiff's EEOC charge if (and only if) the putative collective action member could have filed a timely charge of discrimination on the day that the representative plaintiff actually filed his or her charge. Thiessen v. GeneralElec. Corp., 267 F.3d 1095, 1111 (10th Cir. 2001); Britton v. Car Toys, Inc., No. 05-CV-726-WYD-

Case 1:04-cv-02686-WDM-CBS Document 221 Filed 04/14/2008 USDC Colorado Page 5 of 11
PAC, 2006 WL 3487686, *4 (D. Colo. Nov. 30, 2006). C. Mr. Tomlinson's EEOC Charge Was Untimely
The statute of limitations begins to run on the date an employee is notified of an adverse employment decision, not the date upon which the adverse consequences of the decision are carried out. Gray v. Phillips Petroleum Co., 858 F.2d 610, 613 (10th Cir. 1988) (citing Delaware State College v. Ricks, 449 U.S. 250, 256-59 (1980)). Thus, an employee is generally notified of an adverse employment decision when a particular event or decision is announced by the employer, even if the consequences of the adverse decision are delayed. Id. at 614; Callan v. Pepsi-Cola Bottling Co. of Topeka, Inc., 801 F. Supp. 448, 453 (D. Kan. 1992) (holding that the 300 day time period began to run when the plaintiff was informed that his position was being eliminated, not when the employer subsequently stopped paying the plaintiff his regular salary and benefits); Stark v. Dynascan Corp., 902 F.2d 549, 552 (7th Cir. 1990) (the limitations period began to run the day the plaintiff was notified of his termination, not his last day of employment); Watson v. Eastman Kodak Co., 235 F.3d 851, 852-53 (3d Cir. 2000).
As the employee communications distributed by El Paso between 1996 and 2001 make clear, El Paso gave sufficient notice to trigger the running of the statute of limitations far more than 300 days before Mr. Tomlinson filed his charge with the EEOC. See Exhibit 2, p. 3 ("After December 31, 2001, the current pension plan benefit for all participants will be frozen and employees will not earn any further benefits under the current plan of benefits. An employee who retires in the future will be entitled to the greater of their benefit figured under the current pension plan formula and the value of their cash balance in CBP Select" (bold in original)); Exhibit 3, p. 2 ("the current pension formula will remain in effect... until December 31,2001. After that date, the current

Case 1:04-cv-02686-WDM-CBS Document 221 Filed 04/14/2008 USDC Colorado Page 6 of 11
pension formula will be frozen for those participants and they will not earn any additional benefits under the current plan of benefits"); Exhibit 4 (describing the plan in detail and giving several examples of employees of different ages); Exhibit 5, If 2 ("After December 31, 2001, for a participant whose minimum benefit is greater than the cash account benefit, accruals under the Plan may effectively cease until the participant's cash account benefit exceeds the minimum benefit earned as of December 31.2001." (Emphasis added)).
In addition to receiving the employee communications contained in Exhibits 2, 3, 4, and 5, Mr. Tomlinson unambiguously conceded in his deposition that he was on notice of the facts upon which his claim is based no later than 1999. Specifically, Mr. Tomlinson acknowledged that he received a Compensation Statement with information about his individual pension account in September 1999. (Exhibit 11; Exhibits, 174:17175:16). He further admitted that in the September 1999 timeframe he understood that after December 31, 2001 his Minimum Benefit would cease to grow. (Exhibit 6, 177:3 8). Indeed, page 9 of Mr. Tomlinson's Compensation Statement contains a large bar graph depicting the projected values of Mr. Tomlinson's cash balance account and his Minimum Benefit at his then current age and at ages 55, 60, 62, and 65. (Exhibit 11, p. 9 of 11). This graph unmistakably notified Mr. Tomlinson that his cash balance account would trail his Minimum Benefit from his then current age (in 1999) until age 65. (Id.}
When asked about the bar chart, Mr. Tomlinson conceded that he understood from the chart that it would take a number of years for his cash balance benefit to catch up to the Minimum Benefit. He even went to far as to explain that if he used different assumptions that he thought to be more plausible than the assumptions behind the bar chart, his cash balance benefit would never catch up to the Minimum Benefit. (Exhibit 6,

Case 1:04-cv-02686-WDM-CBS Document 221 Filed 04/14/2008 USDC Colorado Page 7 of 11
179:23-180:25).
Moreover, Mr. Tomlinson himself agrees that El Paso did not provide him with
any new information related to his claims after December 2001. After December 2001,
he simply spent time speaking with lawyers and doing calculations to understand the
precise nature of his claims. (Exhibit 6, 162:8-163:10). Given that the issue is when El
Paso put Mr. Tomlinson on notice of its actions, the 300 day limitations period began to
run no later than December 2001.
Beyond that, there is no doubt that Mr. Tomlinson did form the actual belief that
he had been discriminated against on the basis of his age outside of the limitations
period. Thus, by August 7, 2003, Mr. Tomlinson had contacted a lawyer to become a
named Plaintiff in this very action. (Exhibit 12; Exhibit 6, 248:21-249:24). Mr. Tomlinson
stated in an email to his former divorce lawyer:
Karen did you hear about IBM losing the class action suit dealing with the age discrimination of their pension plan (cash balance plan).... [D]id you know that El Paso Natural Gas did the same thing in 1997 converting the defined benefit plan to a cash balance plan. With my calculations I will never be able to equal a new employee accumulating cash until they retire. (Exhibit 12).3 Mr. Tomlinson also admitted that he had been researching the Cooper v. /5A/decision to determine whether he could bring an age
discrimination claim against El Paso for a "handful of months" before sending
Exhibit 12. (Exhibit 6,185:19-187:25).
Finally, Mr. Tomlinson also admitted during his deposition that (1) he probably first learned of the wear away period in 1996 but definitely before 2001 (Exhibit 6, 68:13
3 Plaintiff will assert that this exhibit is inadmissible because it is privileged. However, Mr. Tomlinson sent this document over El Paso's network knowing that he had no expectation of privacy concerning any document he sent over El Paso's network. Accordingly, the document is not privileged. For a complete discussion, please see El Paso's Motion To Compel, Docket No. 208, pp. 7-10, 17-18, which El Paso incorporates by reference pursuant to Fed.R.Civ.P. 10(c).

Case 1:04-cv-02686-WDM-CBS Document 221 Filed 04/14/2008 USDC Colorado Page 8 of 11
-69:4); (2) he contacted an El Paso benefits employee in 1997 to understand how his benefits were calculated (Exhibit 13; Exhibit 6; 172:4 -173:15); (3) he received a benefit statement showing that the Minimum Benefit would be larger than his cash balance benefit in December 1997 (Exhibit 14, p. EPTO0015128); (4) he has known since at least 2001 that it would take awhile for the cash balance formula to catch up to his Minimum Benefit (Exhibit 6, 65:15-19); and (5) he created an Excel spreadsheet with a creation date in 2000 which he shared with Plaintiff Muckelroy that both used for the purpose of calculating their benefits under the pension plan (Exhibit 15, Exhibit 6, 225:17-25;286:12-288:1).
Based on the undisputed evidence cited above, there is no question that Mr. Tomlinson had actual knowledge of the facts forming the basis for his claim no later than September 1999, and that he sought a lawyer to represent him no later than August 7, 2003. Because he filed his EEOC charge more than 300 days later, his charge is untimely and the ADEA claim should be dismissed. D. Plaintiffs Cannot Rely On The Continuing Violation Doctrine
El Paso's amendment of the pension plan was a discrete act that took effect on January 1, 1997. Plaintiffs cannot identify any discriminatory act that occurred within 300 days of Plaintiff's submission of his intake questionnaire or afterwards. Instead, the discriminatory act (if there was one) was the amendment of the pension plan itself. Anything that happened after that was simply the result of the January 1, 1997 amendment.
Nevertheless, Plaintiffs are expected to argue that the fact that employees who earned a Minimum Benefit continue to observe no net growth in their pension benefits while their cash balance accounts catch up constitutes a continuing violation for which
8

Case 1:04-cv-02686-WDM-CBS Document 221 Filed 04/14/2008 USDC Colorado Page 9 of 11
the statute of limitations restarts every day. This argument, however, is foreclosed by the U.S. Supreme Court's decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114-115 (2002). Specifically, "[i]n Morgan, the Supreme Court held that a continuing violation theory is not permitted for claims against discrete acts ... thus, a claimant must file a charge ... within the appropriate limitations period as to each such discrete act." Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003) (quoting Davidson v. America Online, Inc., 337 F.3d 1179,1184 (10th Cir. 2003)). See also Haynes v. LevelS Communications,LLC, 456 F.3d 1215, 1222 (10th Cir. 2006).
Morgan's prohibition on the application of the continuing violation doctrine to discrete acts was discussed in a way that relates directly to this case in Ledbetter v. Goodyear Tire and Rubber Company, 127 S. Ct. 2162 (2007). In Ledbetter, an employee alleged that discriminatory performance reviews that she had been given years prior to her charge of discrimination caused her to suffer lower pay during the charge filing period, because pay increases were based in part on performance reviews. Following Morgan, the Supreme Court rejected her claim, and made clear that "current effects alone cannot breath life into prior, uncharged discrimination" and that "such effects in themselves have 'no present legal consequences.'" Id. at 2169 (quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977)).
Here, the amendment of the pension plan was a discrete act, just like the giving of a performance review in Ledbetterwas a discrete act. To the extent Plaintiffs claim that they continue to suffer by virtue of an ongoing wear away period, the wear away period is simply the effect of the creation of the Minimum Benefit. Because Tomlinson received notice of that creation of the Minimum Benefit, as well as the existence of the wear away period far more than 300 days before Tomlinson filed his EEOC charge, his

Case 1:04-cv-02686-WDM-CBS Document 221 Filed 04/14/2008 USDC Colorado Page 10 of 11

claim is untimely.

Lastly, El Paso anticipates that Plaintiffs might rely on Bazemore v. Friday, 478

U.S. 375 (1986) in support of their continuing violation theory. However, any such

reliance has already been rejected by the Supreme Court in Florida v. Long, 487 U.S.

223, 289 (1988), which refused to apply the reasoning of Bazemoreto pension plans.

IV. CONCLUSION

Defendants respectfully request that the Court enter partial summary judgment

on Plaintiffs' ADEA claim in their favor, because Plaintiffs did not file an EEOC charge

within 300 days of receiving notice of the facts upon which the ADEA claim is based.

Respectfully submitted this 14th day of Aprjfc>2008. /^.

/l/M

s/vofren E. Nadel

Darren E. Nadel Joshua B. Kirkpatrick
Melissa A. Monheim Littler Mendelson, P.C.

One Tabor Center 1200 17th Street, Suite 1000 Denver, Colorado 80202 Telephone: (303) 629-6200 Facsimile: (303) 629-0200 dnadel@littler.com

Christopher J. Rillo Groom Law Group, Chartered
1701 Pennsylvania Avenue NW Washington, D.C. 20006-5893
Telephone: (202) 857-0620 Facsimile: (202) 659-4503 crillo@groom.com

Attorneys for Defendants El Paso Corporation and El Paso Pension Plan

10

Case 1:04-cv-02686-WDM-CBS Document 221 Filed 04/14/2008 USDC Colorado Page 11 of 11

CERTIFICATE OF SERVICE

I hereby certify that on April 14, 2008, a true and correct copy of the foregoing
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT ON ADEA CLAIM FOR FAILURE TO FILE A TIMELY
CHARGE OF DISCRIMINATION was electronically filed and served via the CM/ECF system which will send notification of such filing to the following. The duly signed original is on file at the office of Littler Mendelson, P.C.

Stephen R. Bruce, Esq. 805 15th Street, NW, Suite 210 Washington, D.C. 20005 Stephen.bruce@prodiav.net

Barry D. Roseman, Esq. McNamara, Roseman, Martinez & Kazmierski, LLP
1640 East 18th Avenue Denver, Colorado 80218 bdr@ 18thavelaw.com

JbhuL 4. $tt&
s/Barbara A. Petrick Barbara A. PetricK

Firmwide:84685106.3 021648.1075

11

 
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In order to determine the timeliness of a plaintiff's claims, courts routinely analyze which alleged discrete

acts fell within the limitations period and which did not. See Davidson, 337 F.3d at 1186 (excluding

plaintiff's previous refusal to hire claim because it occurred outside the limitations period); Rydzeski v.

Curian Capital, LLC, No. 06-cv-01298-WDM-BMB, 2008 U.S. Dist. LEXIS 11573, at *16-17 (D. Colo. Feb.

14, 2008) (determining that while two of the alleged discrete acts fell within the limitations period, "[a]ll

other acts which Plaintiff complains about are time-barred as they occurred more than 300 days" prior to

the date of the charge), attached as Exhibit B. Thus, Plaintiffs were obligated to prove that they suffered

an alleged discrete unlawful act that occurred within 300 days of Mr. Tomlinson's charge. @ , +* +-** '/*% 0 ' ,,." ( - / . +'. , *% ' +'-8* , % . - / ' 9 + +*

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 Preliminary Report on the Impact of Amending the Defined Benefit Retirement Plan to the Cash Balance Pension (CBP Select) on Older
Employees
In re: Wayne Tomlinson, Alice Ballesteros, and Gary Muckelroy, individually and on behalf of all others
similarly situated, v. El Paso Corporation and El Paso Pension Plan Civil Action No. 4-cv-02686-WDM-CBS United States District Court for the District of Colorado
Prepared for
Barry D. Roseman Mcnamara, Roseman, Martinez and Kazmierski
1640 East 18th Avenue Denver, CO 80218 (303) 333-8700
Stephen R. Bruce Suite 210
805 15th St., NW Washington, D.C. 20005
202-371-8013
Bardwell Consulting Ltd. Robert A. Bardwell, Ph. D.
4801 W. Yale Ave. Denver, Colorado 80219
(303) 934-3851
April 15, 2008

Table of Contents
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. Introduction and Summary of Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Context of the Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Summary of Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. Transition to El Paso Cash Balance Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. Plan Transition Impact on Older Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Design of the Transition Resulted in Systematic Impact on Older Employees . . . . . . . . . . . . . . 4
4. Wear-Away Duration Strongly Associated with Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Calculation of Wear-Away . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Wear-Away Increases with Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Chart 1: Duration of Wear-Away By Employee Age . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Chart 2: Duration of Wear-Away by Employee Age, by Company . . . . . . . . . . . . . . . . 7 Chart 3: Duration of Wear-Away by Five-Year Age Intervals . . . . . . . . . . . . . . . . . . . . 8 Chart 4: Duration of Wear-Away by Five-Year Age Intervals, by Company . . . . . . . . . 9 Age Central Determinant of Wear-Away . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Chart 5: Duration of Wear-Away by Age and Years of Vesting Service . . . . . . . . . . . 10 Chart 6: Duration of Wear-Away by Age and Frozen Benefit . . . . . . . . . . . . . . . . . . . 11 Multivariate Regression is Not Needed to Understand the Impact of Age on Wear-Away . . . . 11
5. Calculation of Benefit Reductions and Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Benefit Reductions Disproportionately Impact Older Employees . . . . . . . . . . . . . . . . . . . . . . . 12 Table 1: Reduction in Benefits By Age on Transition Date . . . . . . . . . . . . . . . . . . . . . 13 Chart 7: Benefit Reductions After Ten Years by Age Interval and Company . . . . . . . 14 Damages Calculations Reveal Older Employees Suffered Over 90% of Losses . . . . . . . . . . . . 14 Table 2: Estimated Total Damages by Age and Company . . . . . . . . . . . . . . . . . . . . . . 15
6. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7. Data and Information Sources Used . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Data and Documentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8. Consultant Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Attachment 1: Electronic Files Including Data Compiled and Processed by Plaintiffs . . . . . . . . . . . . . 17
Attachment 2: Curriculum Vitae of Robert A. Bardwell, Ph. D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

©Bardwell Consulting

Page 1 of 27

1. Introduction and Summary of Findings

This report is a preliminary analysis of the impact on older employees of El Paso Corporation’s transition from the Defined Benefit Retirement Plan to the Cash Balance Pension (CBP) from 1997 through 2006.

•

Section 1 contains the Introduction and a Summary of Findings.

•

Section 2 describes the factors impacting benefits for employees during the transition between plans.

•

Section 3 explains the specific mechanisms through which the transition impacted older employees.

•

Section 4 provides a graphical analysis of the elevated wear-away for older employees.

•

Section 5 describes the method for calculating reductions in benefits and damages for the putative

class.

•

Section 6 provides a conclusion.

•

Section 7 lists the sources of data used in the report.

•

Section 8 addresses my qualifications and compensation.

Context of the Analysis

This is a class action under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), 29 U.S.C. § 1001 et seq., and a representative action under the Age Discrimination in Employment Act of 1964, as amended (the “ADEA”), 29 U.S.C. § 621 et seq. Plaintiffs claim that defendants have violated the ADEA and ERISA by amending a defined benefit retirement plan in a manner that freezes the benefits of older, longer-service employees during a “wear-away” period, and provides lower rates of benefit accrual to almost all employees, especially older employees.1 I have been retained by the plaintiffs to conduct statistical analyses of the impact of age on retirement benefits for the putative class.

This analysis of wear-away and other impacts of the plan transition relies on two sources of data provided by defendants. Spreadsheets were produced, providing detailed pension records for 956 El Paso, 547 Sonat and 1,372 Coastal class members. These were augmented by a web-based “extranet” through which we had restricted access to Mercer’s BeneCalc pension administration system. We were provided information for a subset of 737 El Paso, 509 Sonat and 1,203 Coastal employees. In addition, our access to the extranet was restricted so that batch processing functions were disabled. This meant that only reports for individual employees had to be requested one at a time. In order to compile data for all putative class members, we had to construct an automated “robot” that could submit thousands of queries to this limited system.

Routines were also devised to recalculate data and reconstruct missing data, for example, account balances for employees for whom those data were missing. The database that we were able to compile was sufficient to calculate wear-away, reductions in benefits and damages for most employees.2 The data from these

1Class Action Complaint, p. 1. 2Information was incomplete for some employees. ©Bardwell Consulting

Page 2 of 27

sources was combined and used to calculate the wear-away period and other impacts of the plan transition using spreadsheets produced by actuary Claude Poulin.3
Summary of Findings
The results of this study demonstrate that the conversion to the CBP by defendants adversely impacted older employees and resulted in substantial loss in benefits for older employees. My central findings are:
1. While all employees were negatively impacted by the change to a cash balance plan, the plan is implicitly structured in such a way that older employees are more negatively impacted by the plan conversion than are younger employees.
2. Older employees spend on average a longer time accruing no additional benefits (wear-away period) than do younger employees, resulting in an adverse impact on older workers.
3. Age impacts the length of the wear-away period both directly through structural features of the plans and indirectly, by means of its strong relationship with all the other factors that directly impact the length of the wear-away period.
4. When the benefits under the new plan are compared to the benefits under the old plan, older employees have larger average reductions in benefits than do younger employees.
5. El Paso could have foreseen the impacts of the plan conversion on older workers using information available at that time, and therefore could have modified the plan design in order to reduce those impacts.
6. If multivariate regression is used, the statistical significance of the effect of age on wear-away is found to be so extreme (over 35 standard deviations) that it rules out the possibility that the impact due to chance.
7. Reductions in benefits as a result of the transition are quite steep for all but the youngest employees. For example, employees who were over 50 on the date their company went to the cash benefit plan had on average a 91.5 percent reduction in benefits after five years, and still had a 77.0 percent reduction in benefits after 15 years.
8. Over 90 percent of damages were borne by older employees.
These finding provide strong evidence that older employees suffered a systematic reduction in benefits as a result of the pension plan transition that defendants implemented.

2. Transition to El Paso Cash Balance Plan
On January 1, 1997, El Paso converted its traditional defined benefit pension plan into a “cash balance” plan. A cash balance plan attempts to mimic the behavior of a defined contribution plan, even though it is still regulated as a type of defined benefit plan. Employees under a cash benefit plan have an “account balance”

3The data compiled from all these sources, and the results of all computations are included in electronic Attachment 1, (with confidential data subject to Protective Order and to be filed under seal).

©Bardwell Consulting

Page 3 of 27

which is expressed as a dollar amount. The account balance opened on January 1, 1997 with employees receiving an opening account balance having a computed relationship to the accrued traditional benefit as of that date. The cash benefit account balance can grow by additions of pay credits, which are a function of salary, age, and years of vested service, and by additions of interest credits, which are computed by multiplying an interest crediting rate, based on short-term Treasury interest rates, by the balance in the account at the time the interest credits applied.
Rather than switching immediately from the traditional pension plan to the cash benefit plan, El Paso implemented a five-year transition period during which both plans grew in value. During the transition period, a person who was retiring would receive the benefit from the more valuable of the two plans. At the end of the transition period, on January 1, 2002, the benefit in the traditional pension plan was “frozen.” Employees retiring after that time would still receive the benefit derived from the more valuable of the two plans, but the traditional benefit would cease to gain value, while the cash balance plan account value continued to grow. For many employees, however, the value of the cash balance plan value was substantially lower than the value of the frozen benefit, such that the cash benefit plan account value would not be used in computing the actual benefit. This greater-of transition occurs over a period of years during which the value of the actual retirement benefit ceased to grow at all. This phenomenon is called “wear-away.” Generally speaking, the duration of the wear-away period will increase as a function of the size of the gap between the cash account value and the value of the frozen benefit. This phenomenon could be avoided by using an “A plus B” transition in which the cash balance credits are added to the frozen benefits.
The Sonat and Coastal companies were acquired by El Paso in 1999 and 2001, respectively. Prior to their acquisition by El Paso, these companies also had traditional defined benefit plans with benefit computation methods similar to El Paso’s. These employees were also converted to El Paso’s cash benefit plan after fiveyear transition periods.

3. Plan Transition Impact on Older Employees

The transition from a traditional defined benefit plan to a cash balance plan is generally a move by the plan sponsor to reduce their costs. If that is the case, it can be expected that employees as a group will have reduced benefits when such a transition occurs. In the case of the El Paso Pension Plan, the burden of these negative impacts are borne disproportionately by older workers.

Design of the Transition Resulted in Systematic Impact on Older Employees

El Paso’s transition to a cash balance plan disproportionately impacted older workers in a number of ways. These impacts were built into the very structure of the new plan. These impacts are detailed in Mr. Poulin’s declaration and summarized more briefly here:

•

A given nominal pay credit is more valuable for a younger employee than for an older employee, due

to the interest credits that will be associated with it over the life of the employee.4

•

Exclusion of early retirement benefits from the opening cash balance account increases the gap

between the opening balance and the frozen benefit, increasing the length of the wear-away period.

This effect is greater for older people, who are more likely to be old enough to have early retirement

benefits included in their frozen benefit.5

4Claude Poulin Declaration, §20-22
5Claude Poulin Declaration, §36 ©Bardwell Consulting

Page 4 of 27

•

El Paso applied a pre-retirement mortality discount in the computation of the opening account

balance. While the proportional impact is similar for older and younger workers, it reduces the

opening account balances by a larger absolute amount for older workers, increasing the length of the

wear-away period.6

•

The benefits accrued under the prior formula during the five year transition period are not included

in the opening account balance. This creates a larger gap between the value of the frozen benefit and

the value of the cash balance account on the date when the prior pension benefit is frozen, thus

increasing the length of the wear-away period. The size of this gap is larger with older workers,

because the prior pension plan allows their increases in salary to multiply over all of their years of

service.7

•

Drops in interest rates after the plan conversion have a greater impact on older people. 8

The fact that these disproportionate impacts are built into the structure of the plan indicates that they were not random, nor would they have been unexpected. At any time prior to implementing the new plan, an analyst with the details of the plan and a few basic assumptions could have estimated the impacts on El Paso employees and recognized that the impact is borne primarily by older workers.

4. Wear-Away Duration Strongly Associated with Age
Calculation of Wear-Away
The plaintiffs have retained actuary Claude Poulin, who has made a detailed analysis of the former and new benefit plans sponsored by El Paso.9 Mr. Poulin produced nine spreadsheet calculators that were used in our analyses: three spreadsheets for each company, El Paso, Sonat and Coastal.10 Each spreadsheet computed values for a different analysis: (1) length of wear-away; (2) reduction in benefits from the plan transition; and (3) resulting damages.
In most instances of putative employment discrimination, the only way to determine whether employment decisions have a discriminatory impact is through observing the impact on employees. This case is different. The impact of the plan transition is predetermined and can be calculated from the age, service, prior plan benefit and salary. Therefore, we can evaluate the systematic impact resulting from the design of the plan transition. In other words, we know from its construction that the plan transition was not age neutral. The impact was known by defendants in advance of implementation. The monetary losses to the putative class could be calculated in advance, resulting in a substantial reduction in liabilities on defendants’ books.
Wear-Away Increases with Age
Using Mr. Poulin’s spreadsheets, we report the wear-away period computed using the current annuity

6Claude Poulin Declaration, §37 7Claude Poulin Declaration, §38 8Claude Poulin Declaration, §39-40 9Declaration of Claude Poulin. 10Wear-away, benefit reduction and damage calculation spreadsheets produced by Claude Poulin. ©Bardwell Consulting

Page 5 of 27

purchase rates. This wear-away period is the number of years during which the cash balance account, expressed as a monthly age 65 benefit, is less than the now frozen monthly age 65 benefit under the prior plan. The existence and length of wear-away can be calculated from four values for each employee: age, vested service, cash plan balance, and the frozen benefit value of the prior plan11. El Paso’s payroll and pension data demonstrate convincingly that the duration of the wear-away period is strongly associated with age. During the wear-away period, employees are accruing no additional benefits. Older employees spend on average a longer time accruing no additional benefits than do younger employees, resulting in an adverse impact on older workers.
Chart 1 compares the average wear-away duration for employees 40 and over to younger employees. This chart shows the strong relationship between age and length of wear-away, and the sizeable impact on older employees. The plan transition resulted in employees 40 and over waiting on average over eight years while they earned no additional benefits, versus less than 2 years on average for employees under 40. An “adverse impact ratio” is often used to quantify the severity of adverse impact. In this case, we can compute the ratio of the mean years of wear-away for older employees relative to younger employees. The average wear-away for older employees was 8.2 years, versus 1.9 for younger employees, giving an adverse impact ratio of 421%, far exceeding ratios often associated with findings of discriminatory impact.
Chart 1: Duration of Wear-Away By Employee Age

Chart 2 shows the same pattern, but displayed for each of the three companies separately . The wear-aways are consistently six to 11 years on average for older employees, while the wear-away for younger employees

11These data elements are computed as of the date the prior pension benefit was frozen, i.e. January 1, 2002 for El Paso,

January 1, 2005 for Sonat, and April 1 2006 for Coastal.

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ranged from less than one at Coastal (0.6 years) to 4.1 at El Paso. The adverse impact ratios range from 308% at Sonat to 1015% at Coastal, implying that the wear-away for older employees was over 10 times the that for younger employees.
Chart 2: Duration of Wear-Away by Employee Age, by Company

Chart 3 shows that as employees age, they experienced increasingly lengthy wear-away periods. For every five year increase in the employee’s age, the wear-away period on average becomes approximately two years longer.

©Bardwell Consulting

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Chart 3: Duration of Wear-Away by Five-Year Age Intervals

Chart 4 shows the wear-away for the same five year age bands, but for each company separately. This chart demonstrates that for El Paso and Sonat wear-away periods for older employees over 20 years. Many workers over age 50 will never resume earning retirement benefits before they retire.

©Bardwell Consulting

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Chart 4: Duration of Wear-Away by Five-Year Age Intervals, by Company

Age Central Determinant of Wear-Away

The existence and length of wear-away can be calculated from five values for each employee: age, vested service, the frozen benefit, the cash balance plan value, and salary. Age is positively correlated with years of wear-away: as age increases, the years of wear-away also increases. In addition, vested service, the frozen benefit, salary, and the cash plan balance are positively correlated with age: as age increases, each of these tends to increase.

Since these factors are all positively correlated with age, the age of employees has a strong impact on the existence and length of wear-away. Age is the necessary antecedent of higher values of the other variables. As such, age is the necessary if not sufficient condition through which any of them impacts wear-away. This relationship between age and the other variables means that each of these variables will mediate the impact of age, tending to act as a proxy for age in their impact on wear-away.

For example, while an employee age 50 can have 25 years of service, it is impossible for an employee who is age 30 or 40 to have that many years of service. Similarly the frozen benefits that could be acquired by an employee of age 50 would be unachievable for a 30 or 40 year old employee. Age is a necessary precursor for all the factors affecting wear-away.

Chart 5 demonstrates the relationship between age, years of service and wear-away. Duration of wear-away is indicated by the number shown at each location representing a combination of age and service. For example, the number 11 near the middle of the chart indicates that employees age 42 with 11 years of service have an average of 11 years of wear-away. The duration of wear-away increases with age, as seen by looking across a row of numbers. Similarly, the duration of wear-away increases with increasing service, as seen by

©Bardwell Consulting

Page 9 of 27

examining a column of numbers. There is a clear upper limit on Vesting Service, reflecting the fact that generally people don’t begin to work until a certain age, thus many combinations of age and service are impossible.
Chart 5: Duration of Wear-Away by Age and Years of Vesting Service

Chart 6 demonstrates the relationship between age, years of service and frozen benefit. Similar to Chart 5, duration of wear-away is indicated by the number shown at each location representing a combination of age and frozen benefit. The duration of wear-away increases with age, as seen by looking across a row of numbers. Similarly, the duration of wear-away increases with increasing frozen benefit, as seen by examining a column of numbers.

©Bardwell Consulting

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Chart 6: Duration of Wear-Away by Age and Frozen Benefit

Multivariate Regression is Not Needed to Understand the Impact of Age on Wear-Away
In this case there is no need to use statistical tools like correlation analysis or multivariate regression. These tools are designed to investigate patterns that are not already known. For example, multivariate regression estimates the way each of a group of factors impacts an outcome. These tools are inappropriate in this case, since we already know the precise relationship between each of the factors and wear-away. We can use a tool like Mr. Poulin’s spreadsheets to compute the impact of age on wear-away. There is no need to estimate the impact.
In any case, regression analysis does show the key role of age in lengthening the period of wear-away for older employees. This is a strong relationship because the underlying relationship between age and wearaway were built into the transition plan by defendants.
Multivariate regression evaluates the size of the effect of age on wear-away, while controlling for other variables. Age is found to be a primary and statistically significant factor in length of wear-away. A regression model including all the variables used in Mr. Poulin’s calculations of wear-away12 indicates that wear-away for employees is affected by their age, and that the impact is statistically significant at the levels

12The model included age, service, salary, final average salary, cash balance account value and the frozen prior benefit.

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far exceeding the prima facie threshold of 0.05. In fact, the statistical significance of the effect of age on wear-away is so extreme (over 35 standard deviations) that it rules out that the impact is due to chance. To illustrate, consider that the likelihood that age is not a factor in length of wear-away is less than the chance of winning the six-number Colorado lottery 40 times in a row, each time with only one ticket.
If age were not a significant factor in wear-away, we would expect that controlling for other factors would reduce the age effect to statistical insignificance. In contrast, controlling for the significant effects of other variables leaves a highly significant effect of age.
5. Calculation of Benefit Reductions and Damages
In addition to the spreadsheets used to calculate wear-away, Mr. Poulin developed spreadsheets to calculate the reduction in benefits and damages resulting in the plan transition. As employees continue to work after the date of transition to the cash balance plan, they generally accrue benefits more slowly than under the prior pension plan. For most employees, there is a period during which they do not accrue benefits at all, due to the wear-away effects discussed previously. When that period ends, the employees may begin to accrue benefits again, but at a slower rate than they would have under the previous plan. The benefit reduction analysis presented here compares the monthly benefit accrued under the cash balance plan to the monthly benefit that would have been accrued under the prior pension plan. This comparison is shown at five, ten, and fifteen years after the transition date.
Benefit Reductions Disproportionately Impact Older Employees
The average percentage reduction in benefits for all employees by age group is shown in Table 1. The reductions are quite steep for all but the youngest employees. Employees who were over 50 on the date their company went to the cash benefit plan had on average a 91.5 percent reduction in benefits after five years, and still had a 77.0 percent reduction in benefits after 15 years. The youngest employees on average have the smallest reductions in benefits, but over time the reduction they experience increases.

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Table 1: Reduction in Benefits By Age on Transition Date

Age Interval
Under 40 40-45 45-50 50-55 55-60 Over 60

Percent Reduction in Benefits after Five Years

Percent Reduction in Percent Reduction in

Benefits after Ten Benefits after Fifteen

Years

Years

13.4 %

16.9 %

24.0 %

76.2 %

64.0 %

58.7 %

87.4 %

75.1 %

68.6 %

91.5 %

82.8 %

77.0 %

97.9 %

92.2 %

87.4 %

99.0 %

95.7 %

90.9 %

The benefit reduction patterns vary by company. Chart 7 shows benefit reductions after ten years, by age and company. Younger employees in the Coastal company actually had increased benefits in the cash benefit plan, resulting in negative values for the benefit reduction calculation. El Paso and Sonat employees experienced greater reductions at relatively younger ages. In all three companies, there is a clear pattern showing that older employees bear the brunt of the benefit reductions.

©Bardwell Consulting

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Chart 7: Benefit Reductions After Ten Years by Age Interval and Company

Damages Calculations Reveal Older Employees Suffered Over 90% of Losses
Claude Poulin’s also created spreadsheets that enable us to calculate damages from wear-away only, for each individual employee who has been impacted by the transition in the El Paso pension plan.13 The estimated damages are shown in Table 2. This table shows that over 90 percent of damages were borne by older employees.

13Damages are included only for employees for whom data were available, and excluding SERP employees.

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Table 2: Estimated Total Damages by Age and Company

Age Group
All Employees Employees 40 and Over % Borne by Older Employees

Damages for El Paso Employees $21,652,360.36 $20,301,920.58
94%

Damages for Sonat

Damages for

Employees

Coastal Employees

$7,348,851.71

$7,514,335.75

$6,549,533.49

$7,254,093.00

89%

97%

6. Conclusion
This report provides overwhelming and incontrovertible evidence that older employees were impacted by the pension plan transition engineered by defendants. This report is based on data produced to date. It is my understanding that data on additional employee data will be produced by defendants. This report may be amended or a supplemental report submitted as a result of subsequent production by defendants. Section 1 lists detailed conclusions under the Summary of Findings.

7. Data and Information Sources Used

This is an analysis based on documents received to date. This report may be revised and a supplemental report submitted if additional information is provided. I have used the following information in this analysis:

Data and Documentation

1. Tomlinson v. El Paso Class Action Complaint filed December 29, 2004. 2. Plaintiffs’ Opposition to the Motion to Dismiss. 3. Plaintiffs’ Motion for Class Certification and Conditional Approval of ADEA Collective Action,
with supporting brief and exhibits. 4. Judge Walker Miller’s March 22, 2007 and March 19, 2008 Decisions. 5. El Paso Pension Plan document effective January 1, 2001. 6. CBP Select SPD dated August 23, 2002. 7. Mercer’s Calculation Reference Manual for the El Paso Pension Plan. 8. El Paso’s Form 5500 for the 2002 plan year. 9. El Paso’s Actuarial Valuation Report for the 2002 plan year. 10. Pension records for Wayne Tomlinson, Alice Ballesteros and Gary Muckelroy. 11. Online calculator benefit projections for Wayne Tomlinson, Alice Ballesteros and Gary Muckelroy
(P-345 to 407). 12. Sample data for Sonat and Coastal employees, including Scott W., James N., Conrad B., Carl S. and
Anna G. 13. An “extranet” for Mercer’s BeneCalc pension administration system. 14. Spreadsheets for 956 El Paso, 547 Sonat and 1372 Coastal class members. 15. Declaration and exhibits of Kevin Minor of Mercer related to calculations of wear-away. 16. Declaration of Claude Poulin.

©Bardwell Consulting

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17. Wear-away, benefit reduction and damage calculation spreadsheets produced by Claude Poulin.
8. Consultant Background
I have been retained as an expert witness in this case. I possess a Ph.D. in Mathematical Statistics and have been endorsed as an expert in the field of statistics. I have been retained by plaintiffs and defendants to perform statistical evaluation of discrimination in a variety of contexts, and have testified as an expert in the area of statistics and the statistical evaluation of discrimination in United States District Court for the District of Colorado, United States District Court, Nevada, and the Circuit Court of the Sixth Judicial Circuit, Pinellas County, Florida. My Curriculum Vitae is attached. Cases in which I have testified as an expert at trial or by deposition within the preceding four years are indicated on my Curriculum Vitae in bold and are bulleted (|). My publications in the previous ten years are listed in my Curriculum Vitae. My hourly rates are $350 per hour for testimony and preparation, $250 for consultation and research. Robert A. Bardwell, Ph. D.

©Bardwell Consulting

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 In re EI Paso Energy Corporation Pension Plan
Rebuttal Report of Ian H. Altman, FSA
Altman &·Cronin Benefit Consultants, LLC 100 Pine Street, Suite 1500 San Francisco, CA 94111

Section I
II III Exhibit 1

Expert Report of Findings Table of Contents

Title Transition Benefits were Very Valuable
to Older Employees Refutation of Specific Contentions Comments on Methodology of Calculations Revised Rate of Benefit Accrual Exhibit

Page 1
4 8 10

Section I Transition Benefits were Very Valuable to Older Employees
I have reviewed the Declaration of Claude Poulin dated April 15, 2008 in the El Paso Cash Balance litigation. Mr. Poulin makes a series of calculations about benefits provided under the Cash Balance pension plan. While he states no conclusions about the results of these calculations, the implication is that El Paso mistreated plan participants (particularly older participants) in the period from January 1, 1997 through present. I refute each of the specific claims made by Mr. Poulin in the next section of this report. I must start my rebuttal, however, by commenting on the value of the transition be.nefits delivered to older employees, and highlighting how El Paso treated plan participants more generously than required by law and better than most other employers at this time.
By 1996, EI Paso Corporation was facing extreme financial difficulty, typical of their industry at that time. Management assessed their options, and decided that changes needed to be made to the generous final-pay defined benefit pension plan.
In my experience working with hundreds of pension plan sponsors in this decade, most employers facing this urgency froze their defined benefit plan and replaced it with a 401 (k) plan. This contention is supported by the sharp decline in the number of defined benefit plans over the past 15 years. However, EI Paso was committed to their plan and the benefits it provided, so they did not freeze their plan.
Once a decision was made not to freeze benefits, El Paso decided to prospectively convert their final pay plan to a less generous cash balance plan. They were again in good company making this decision, as I know of many plan sponsors who did the same. However, many of these other plan sponsors started the cash balance plan with limited or no transition benefits. Again, this was not the case with El Paso. In order to protect their employees,
1

particularly those close to early retirement eligibility, El Paso continued its prior final-pay

formula for 5 years. In my broad experience, this is among the most generous transition

provisions I have ever seen. Since early retirement eligibility was typically at age 55, this 5-year

transition was a tremendous benefit to employees at or over age 50 at the time of conversion. El

Paso offered this transition when it converted its plan at the beginning of 1997, and again when it

merged Sonat into its plan in 2000 and Coastal in 2001.

How many employees benefited from this generous transition benefit? The following

table shows the number of employees who were included in the cash balance conversions, the

number of these employees who subsequently terminated during the transition periods, and the

number of these employees who retired under the transition benefits:

Employees Terminating or Retiring During T.ransition Periods

! Division I Total #~--fotal I Total

i f--__~mploy~slTerminating Retiring' I

Combined ,6,037

3,139

557 I

* - Retirees included in total terminating

As the table shows, the majority of pension plan participants terminated during the

transition period, when they were fully covered by the transition benefits offered by El Paso. For

this majority, they were in most cases substantially better off with the transition benefits than

they would have been with just the cash balance formula, and they never experienced any wear-

away. This is especially true for the 557 employees who achieved early retirement during the

transition (by definition, these people were age 50 or over when transition began). Mr. Poulin's

report provides clear demonstrations of the value of the early retirement benefits under the

transition formula, which would have been denied many participants had the old formula not

been extended for five years.

2

In conclusion, EI Paso's approach to cash balance conversion, with a 5-year transition period, "ras of substantial benefit to thousands of older employees. Any implication that it disadvantaged large munbers of employees, or discriminated against older employees, is not supported by the cited facts.
Furthermore, there were several high level conclusions reached in my initial expert report, and by Michael Ward in his expert report, that Mr. Poulin has not addressed. My findings included the fact that the EI Paso plan covered a high majority of participants over age 40 from 1998 through 2006, and a high majority of plan cost was directed to those over age 40. Mr. Ward demonstrated that even if accrued benefits payable at age 65 may have been frozen under the alleged wear-away, early retirement benefits (immediately payable, often as a lump sum) were increasing steadily, and most participants in this plan retire prior to age 65. Mr. Poulin did not offer any contrary analysis in his initial report.
My background and the terms of my engagement remain the same as in effect at the time my original expert report was issued.

Ian H. Altman, FSA EnroUed Actuary #08-3701

Date

3

Section II Refutation of Specific Contentions
Starting on page 6 of his report, Mr. Poulin raises a series of contentions about the EI Paso Cash Balance Plan that are either irrelevant or erroneous. I address these contentions below.
Rates of Benefit Accrual Decrease with Age - Mr. Poulin presents an analysis claiming to demonstrate that the "rates of benefit accrual" decrease with age. To make this demonstration, he calculates the change in the age 65 accrued benefit for participants under the cash balance plan. The exhibits presented are the standard "Cooper-like" analysis that has been offered in several prior cash balance age discrimination cases.
There are several flaws in this approach. First and foremost, it is my understanding that the cash balance age discrimination claims have already been dismissed in this case. As such, the fact that the age 65 accrued benefit grows at a decreasing rate with age is not relevant Second, Poulin equates "rate of benefit accrual" with the growth rate in the age 65 accrued benefit. However, these two items are not the same. Cash balance plans typically pay benefits out as lump sums, and the El Paso Plan is no exception. When the actual benefits payable (as a lump sum) are compared over advancing age, there is a clear pattern of increase (see Exhibit 1, which replicates one ofPoulin's examples while focusing on the benefits actually payable).
Future Accruals are Substantially Reduced Mr. Poulin presents figures supporting the claim that the rate of benefit accrual under the cash balance plan is significantly lower than under the prior plan formula. This point is not in dispute. El Paso needed to cut back on the generous retirement benefits it provided when it encountered financial difficulties, and did so by
4

converting to a cash baiance plan. Sponsoring a pension plan in the U.S. is a purely voluntary exercise, and a sponsor generally has the right to modifY, reduce or eliminate benefits prospectively at any time. Any implication that EI Paso acted improperly by reducing future accruals when it changed its pension plan is erroneous.
Mr. Poulin continues his assertions about reduced benefit accruals by documenting that the cash balance plan provides less generous early retirement subsidies than did the prior defined benefit plans. Again, there is no dispute about this point. Subsidized early retirement factors are perhaps the single greatest reason why pension plan sponsors convert final-pay plans to cash balance plans. When it no longer serves the employer's interest to encourage early retirement, plan sponsors prospectively convert to "pure actuarial reductions" through implementing a cash balance plan. Given the wide differences in early retirement treatment highlighted by Mr. Poulin at the bottom of page 12, the importance and generosity of the 5-year transition, which was purely voluntary on El Paso's part, is highlighted.
Wear~Aways Often Last Over 10 Years - Mr. Poulin makes several assertions about
the length of the wear-away period, during which the transition benefit exceeds the cash balance benefit and no additional age-65 accrual is realized. We have several issues with this analysis. First, Mr. Poulin commences his analysis after the 5-year transition has been realized. This is not the effective date of the plan change, which was amended 5 years earlier. Of course, had El Paso not chosen to extend the final-pay benefits for 5 years after the date of amendment, there would be no wear-away. Secondly, Mr. Poulin attributes the wear-away to the fact that E1 Paso
chose not to apply the "A + B" approach to benefits, rather using a transition period and a "greater of A or B" approach. Note, had EI Paso wanted to choose an "A + B" approach, they
would have done so without any transition protection. Mr. Poulin is implying that El Paso
should have provided a generous 5-year transition, and then gone to an A + B approach, which
5

would be equivalent to not making any changes to the plan for 5 years. Given the financial urgency faced by El Paso at this time, Mr. Poulin's suggestion is unreasonable. I have never
experienced a plan sponsor who combined a transition period like El Paso's with an A + B
approach in my near 30 years of practice. Finally, the heading of this section obscures the fact that for younger employees the projected wear-away period is much shorter than 10 years. Mr. Poulin's two examples of employees age 34 at the time of plan conversion show an expected wear-away of only 2 to 3 years.
Mr. Poulin goes on to highlight four reasons why he believes that the cash balance benefit is lower than it should be under the new plan formula. First, he cites the fact that the cash balance conversion did not reflect the value of early retirement subsidies. This point is not disputed; it was not a requirement to reflect early retirement subsidies and most cash balance conversions do 110t reflect such subsidies. Second, he cites the fact that the conversion balance reflects a pre-retirement mortality discount This again is not refuted, was allowable, and was common practice. Third, he returns to the claim that the conversion balance did not reflect the 5year transition benefit As previously stated, I have never seen a cash balance conversion that contained a transition period and reflected that transition benefit in the initial balance conversion. Finally, he claims that the interest rate now being credited on the cash balance accounts is lower than the initial discounting rates. The rates used to establish the initial cash balances were appropriate measures at the time of conversion (Mr. Poulin does not dispute this). The fact that market rates have declined since conversion appears to be the source of his concern. Had market interest rates risen, participants would have come out ahead on the initial conversion - there was no inherent bias present at the conversion. Falling interest rates carmot be blamed on E1 Paso Corporation.
6

In this section, Mr. Poulin also notes that benefit accruals for employees like Mr. Tomlinson will resume at some point before they reach age 65. Mr. Poulin states, "The rate of benefit accrual at that time will be infinitely more than the zero accrual rate in the preceding 10 years." This type of analysis is generally found in claims about backloading violations in cash balance conversions. The analysis is not relevant in this case, however, as the backloading claims have already been dismissed.
7

Section 3 Methodology of Calculations
Mr. Poulin prepared a series of Exhibits to support the results of his report. This section offers specific comments on the methodology used to create these exhibits.
Mr. Poulin's Exhibit D is intended to display how the rate of benefit accrual changes under the Cash Balance Plan as participants age. However, as previously mentioned, this chart displays the change in the accrued benefit at age 65, which is not the same as the rate of benefit accrual. Cash balance plans, like El Paso's, typically pay lump sum benefits. We have therefore prepared Exhibit 1, which utilizes the exact facts as Mr. Poulin's Exhibit D, but displays the growth in the lump sum as the employee ages.
The results of Exhibit 1 show that the growth in lump sum value does not decline with age. On the contrary, the lump sum growth increases as the participant ages. This demonstrates two things: 1) the underlying cash balance plan is not age discriminatory, and 2) Mr. Poulin's core argument falls apart if we separate the growth in the accrued benefit at age 65 from the rate of benefit accruaL
Mr. Poulin's Exhibit F shows projections of how long the wear-away period lasts for certain employees, as measured from the date at which the transition period ends. As previously mentioned, this is not the date of the plan change (which was 5 years earlier), it is merely the date at which the alleged wear-away period looks most extreme. Further, Mr. Poulin acknowledges that the results of the projections in Exhibit F are very sensitive to assumptions. I
8

note that Exhibit F utilizes a 4.0% interest credit projection, even though the current rate is 4.2%, and the rate has exceeded 4.0% for the last 3 years. If we use the actual interest crediting rates for projection purposes, I estimate that Mr. Poulin's model indicates a wear-away period for Mr. Tomlinson that is roughly one full year less than his 11 to 12 year projection. If we assume that the interest credit rate rises to 5.0% (interest rates are beginning to rise as commodity prices climb), the projected wear-away period is shortened by closer to two years, and if rates retum to the initial level of 6.5%, the projected wear-away period could be reduced by several years. This sensitivity analysis produces two conclusions: Mr. Poulin's analysis is overstating results based on current conditions, and the results of this analysis are very sensitive to small changes in assumptions.
Finally, to assess damages, Mr. Poulin has accumulated the cash balance credits that would have been received were it not for the wear-away due to the continuation of prior formula benefits under the transition period. This methodology is flawed. Damages are typically taken as a measure of benefits lost due to a particular change or event. In this case, however, Mr. Poulin is counting as damages cash balance credits that would have been received except for the fact that the benefit was already received by the participant under the transition benefit. Since the only way that the cash balance credits would not be received is if the participant has aheady received the benefit under continuation of a prior fOIDlula, it is not appropriate to count that money in a tally of damages.
9

Exhibit 1
Revised Demonstration of Rate of Benefit Accrual
10

EI Paso Cash Balance Plan
Rate of Benefit Accrual - Measured as a Lunlp Sum

Age

Salary

Pay Credit

Int Credit

Cash Sal

Increase

Increase

1

2

:3

4

3 +4 + Prior Cash Sal

as % of Sal

45

$ 54,900

$ 3,294

$

$ 3,294

$ 3,294

46

$ 57,096

$ 3,997

$ 132

$ 7,422

$ 4,128

47

$ 59,380

$ 4,157

$ 297

$ 11,876

$ 4,453

48

$ 61,755

$ 4,323

$ 475

$ 16,674

$ 4,798

49

$ 64,225

$ 4,496

$ 667

$ 21,837

$ 5,163

50

$ 66,794

$ 4,676

$ 873

$ 27,386

$ 5,549

51

$ 69,466

$ 4,863

$ 1,095

$ 33,344

$ 5,958

52

$ 72,245

$ 5,057

$ 1,334

$ 39,735

$ 6,391

53

$ 75,134

$ 5,259

$ 1,589

$ 46,583

$ 6,849

54

$ 78,140

$ 5,470

$ 1,863

$ 53,916

$ 7,333

55

$ 81,265

$ 5,689 . $ 2,157

$ 61,762

$ 7,845

56

$ 84,516

$ 5,916

$ 2,470

$ 70,148

$ 8,387

57

$ 87,897

$ 6,153

$ 2,806

$ 79,107

$ 8,959

58

$ 91,413

$ 6,399

$ 3,164

$ 88,670

$ 9,563

59

$ 95,069

$ 6,655

$ 3,547

$ 98,872

$ 10,202

60

$ 98,872

$ 6,921

$ 3,955

$ 109,748

$ 10,876

61

$ 102,827

$ 7,198

$ 4,390

$ 121,335

$ 11,588

62

$ 106,940

$ 7,486

$ 4,853

$ 133,675

$ 12,339

63

$ 111,217

$ 7,785

$ 5,347

$ 146,807

$ 13,132

64

$ 115,666

$ 8,097

$ 5,872

$ 160,776

$ 13,969

65

$ 120,293

$ 8,420

$ 6,431

$ 175,627

$ 14,852

6.0% 7.2% 7.5% 7.8% 8.0% 8.3% 8.6% 8.8% 9.1% 9.4% 9.7% 9.9% 10.2% 10.5% 10.7% 11.0% 11.3% 11.5% 11.8% 12.1% 12.3%

 
 Case 1:04-cv-02686-WDM-CBS Document 325-14 Filed 02/26/09 USDC Colorado Page 1 of 9
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Case No. 04-cv-02686-WDM-CBS WAYNE TOMLINSON, ALICE BALLESTEROS, GARY MUCKELROY, individually and on behalf of all others similarly situated,
Plaintiffs, v. EL PASO CORPORATION, and EL PASO PENSION PLAN,
Defendants.
DECLARATION OF MICHAEL P. WARD
I, Michael P. Ward, declare: 1. I make this Declaration based on my personal knowledge. If called to testify under oath, I could do so truthfully and competently. 2. I am Senior Vice President and Senior Analyst at Welch Consulting, a consulting firm specializing in economic and statistical research. I am also Senior Economist at Unicon Research Corporation, a sister organization performing grant and contract research for the federal government. A copy of my Curriculum Vitae is attached as Exhibit 1. 3. I have calculated the value of individual pension benefits in hundreds of cases involving economic loss. A list of my testimony over the past seven years is attached as Exhibit 2.
EXHIBIT
D

Case 1:04-cv-02686-WDM-CBS Document 325-14 Filed 02/26/09 USDC Colorado Page 2 of 9

4. I was asked by counsel for El Paso Corporation to analyze statistics pertaining to employees who participate in its pension plan. A list of the documents and data we received is attached as Exhibit 3. All of the documents and data we received were also produced to Plaintiffs. 1

Transition to Cash Balance

5. Prior to the conversion to a cash balance plan, employees who were participants in the pension plan earned a retirement benefit that was calculated based on the particular employee's years of service and income history using a formula known as a "Final Average Pay Formula." The value of the benefit could be calculated as either a monthly annuity or a single lump-sum.

6. El Paso converted its pension plan to a cash balance plan beginning on January 1, 1997.2 Each participant's Opening Cash Balance was calculated based on

the present value of his or her final average pay benefit as of January 1, 1997.

7. For the next five years of employment, each person's pension was

calculated in two ways. First, benefits were calculated under the final average pay

formula (referred to in the pension plan as the "Minimum Benefit") that existed prior to

the start of the transition period. Second, benefits were calculated under the cash

balance formula by adding pay and interest credits to the Opening Cash Balance.

8. These two formulas ran side by side for five years. At the end of the five

years, each participant was entitled to receive the larger of the two formulas. The

1 In performing my analysis, I excluded data that was not reliable. This is a standard practice and did not

affect the validity of 2 Different transition

my results. My analysis ultimately included 2,011 employees. dates applied to employees of different companies owned by

El

Paso.

All three

named Plaintiffs were employed by a company known as EPNG. The dates referred to in this Declaration

refer to the transition that pertained to EPNG employees. However, I used the correct transition dates for

the Sonat and Coastal employees in my calculations.

2

Case 1:04-cv-02686-WDM-CBS Document 325-14 Filed 02/26/09 USDC Colorado Page 3 of 9
"Minimum Benefit" was "frozen," at the end of the five year transition in the sense that value of the benefit that an employee could receive at age-65 could no longer change.3 The benefits under the cash balance plan continued to accumulate according to the formulation of that plan. Upon retirement, employees received whichever benefit was higher: the final average pay benefit, or the cash balance benefit. Summary Of Why Plaintiffs' Allegations Are Incorrect
9. Plaintiffs contend that the freezing of the Minimum benefit had disparate age effects. According to their complaint: "the transition is structured in a manner that causes older, longer service employees to earn no additional benefits for a number of years beyond the benefits to which they were already entitled under the old plan formula as of December 31, 2001." (Paragraph 25).
10. Plaintiffs' allegations are mathematically incorrect. Instead of measuring the actual benefit payable at any given point in time, Plaintiffs measure only the value of the benefit that is payable at age 65. However, Plaintiffs, like virtually all El Paso employees, retired at ages younger than 65. Under the terms of the pension plan described in Paragraph 12 below, the actual value of the benefit that an employee can immediately receive under the final average pay benefit continues to grow from the time the transition period closed until the individual reaches age 65 or age 60 plus 30 years of service.
11. The growth in the actual value of the benefit an employee can immediately receive under the final average pay benefit after the transition period is the result of
3 However, employees who turned 55 after the close of the transition period could still earn an Early Retirement Supplement. See§ 4.3 of the pension plan.
3

Case 1:04-cv-02686-WDM-CBS Document 325-14 Filed 02/26/09 USDC Colorado Page 4 of 9
certain provisions of the pension plan. See§ 4.3(b) (setting forth reduction criteria for
individuals who retire before age 65 and take an "Early Retirement Benefit"); § 4.5(b)
(setting forth reduction criteria for individuals who retire before age 65 and receive a
"Vested Termination Benefit").
12. Specifically, in sections 4.3(b) and 4.5(b), the plan sets forth reduction
factors that are applied to the retirement benefits of employees who retire before age 65
and/or before age 60 plus 30 years of service. Section 4.3(b) states that a Participant's
Minimum Benefit will be reduced in the following situations:
(i) if upon termination of employment, the Participant has completed at least 30 years of Credited Service, his or her Minimum Benefit shall be reduced by 2% for each year by which the benefit commencement date precedes his or her 60th birthday, with pro rata reductions for fractional years; or
(ii) if upon termination of employment the Participant has completed less than 30 years of Credited Service, his or her Minimum Benefit shall be reduced by 2% per year for the lesser of (A) each year by which the benefits commencement date precedes his or her 65th birthday, or (B) the excess of 30 over the number of years of Credited Service, with pro rata reductions for fractional years; provided. however, that if the Participant's age at benefit commencement is less than 60, the reduction shall not be less than 2% for each year by which the benefit commencement date precedes his or her 60th birthday, with pro rata reductions for fractional years.
Section 4.5(b) states that a participant's Minimum Benefit will also be reduced if
the Participant retires before the "Normal Retirement Date" or age 65 in the following
ways:
In the event the Participant will receive the Vested Termination Benefit described in Section 4.5(b), such Minimum Benefit shall be reduced by one one-hundredeightieth (1 /180) for each of the first sixty (60) months by which the Vested Termination Date precedes the Normal
4

Case 1:04-cv-02686-WDM-CBS Document 325-14 Filed 02/26/09 USDC Colorado Page 5 of 9
Retirement Date, and reduced by one three-hundred-sixtieth (1/360) for each of the next sixty (60) months by which the Vested Termination Date precedes the Normal Retirement Date, and reduced Actuarially thereafter. 13. Thus, reduction factors decrease each year that an employee gets closer to either (1) age 65 or (2) age 60 plus 30 years of service. Therefore, the reduction factors that applied on December 31, 2001 (the end of the transition period) are larger than the reduction factors that apply after the close of the transition period as the employee ages toward (1) age 65 or (2) age 60 plus 30 years of service. As the reduction factors decrease, the actual value of the benefit payable on any given day increases. 14. When I compared the growth of immediately available benefits under the Minimum Benefit formula to the growth of benefits under the cash balance formula, I found that older employees not only continued to receive benefits increases, but actually received higher benefit increases than younger workers. Nearly All Employees Retire Before Actually Reaching Age 65 15. I analyzed 2,011 employees of El Paso, Sonat and Coastal who were employed at the beginning of each company's respective transition period and who were still employed at the end of the transition period. At the end of 2007 (the point at which the data ran out), 747 of these employees had left the company. Of these, only six were 65 or older when they left. Exhibit 4 shows these ages of termination.4 Exhibit 4 also shows the ages of the 1,264 employees who were still active as of the end of 2007. Of these, only 11 are 65 or over.
4 There is nothing in the data that indicates the reason for termination.
5

Case 1:04-cv-02686-WDM-CBS Document 325-14 Filed 02/26/09 USDC Colorado Page 6 of 9

16. Therefore, while the final average pay benefit that is payable at age 65 may have been frozen, this is irrelevant to any employee who retires before age 65 or before reaching age 60 plus 30 years of service. Statistically, over 99% of the employees who exit the company have received, or will receive, a pre-age-65 retirement benefit.
Benefits Generally Grow Faster For Older Workers Than For Younger Workers 17. I also statistically tested the rates at which older employees' actually
payable benefits rose in comparison to the rates at which younger employees' cash balance benefits rose.
18. Specifically, I calculated the average annual dollar increase of the cash balance benefit for younger workers - those less than 40 years of age at the end of the transition period. The time period involved in this calculation was from the end of the transition period until the end of the data or until the particular employee left employment. I expressed this on an annual basis. For each year of service, these younger workers' cash balance benefits grew, on average, by $6,861 year.
19. I next calculated the increase in the final average pay benefit over the same period for workers age 40 or over. On average, these older workers' benefits grewby$16,081 peryear.5
20. Therefore, older workers' final average pay benefits grew more than twice as much per year as younger workers' cash balance benefits.
21. I next compared these differences statistically. The number of standard

5 The 2,011

calculations summarized employees referred to in

in paragraphs paragraph 15.

17

through

21

was

performed

with

respect

to

the

same

6

Case 1:04-cv-02686-WDM-CBS Document 325-14 Filed 02/26/09 USDC Colorado Page 7 of 9
deviations separating the two growth numbers was 12.01 standard deviations to the advantage of older workers. I found that these differences are highly statistically significant, meaning that the difference between the average annual growth of older and younger workers' benefits was not due to chance.
22. I have reviewed the expert reports prepared by Robert A. Bardwell, Ph.D. Dr. Bardwell's analysis compares the hypothetical value of the final average pay benefit that is payable at age 65 to the cash balance benefit. Dr. Bardwell concludes that because the benefit payable at age 65 does not grow, there is a so-called wear-away. My analysis differs in that it evaluates the actually payable pension benefit at any point in time, rather than focusing on a benefit that is only payable if the employee happens to retire at age 65.
23. The "wear-away" that Dr. Bardwell refers to is the time period during which the value of the Minimum benefit that is payable at age 65 is greater than the cash balance benefit. However, Dr. Bardwell has not expressed any opinion about the rate at which the value of the immediately available Minimum benefit grows before an individual reaches (1) age 65 or (2) age 60 plus 30 years of service. As I have shown above, the actual value of the Minimum benefit grows faster than the cash balance benefit, even after the conclusion of the transition period.
24. Comparatively, the Minimum benefit was, by and large, a more generous benefit than the cash balance benefit was during the transition period. However, Dr. Bardwell's analysis excludes the growth in the final average pay benefit during the transition period itself.
25. By focusing only on the period after the five-year transition, Dr. Bardwell
7

Case 1:04-cv-02686-WDM-CBS Document 325-14 Filed 02/26/09 USDC Colorado Page 8 of 9
ignores the increase in the Minimum benefit that El Paso provided by including a five year transition period in its conversion to a cash balance plan. By definition, any employee who experiences a "wear-away" has a higher benefit than he or she would have if El Paso had not included a transition period in its conversion to a cash balance plan. This is axiomatically true because in order to be in a wear-away, the employee's Minimum benefit must be higher than the value of the cash balance benefit. Had there been no transition period, there would have only been a cash balance benefit and no Minimum Benefit.
26. El Paso's decision to provide the five-year transition period was unquestionably advantageous to older workers. To assess the value of the transition period, I computed the value of retirement benefits assuming that the transition period never took place, and I instead assumed that the final average pay formula was frozen as of the start of the actual transition period. I compared those hypothetical benefits with the actual value of retirement benefits at the end of the transition period, and found that those extra years of accrual represented a gain of $8,720 per year in retirement benefits for older workers (age 40 and over) versus a $1,982 per year gain for younger workers. The number of standard deviations separating these two numbers is 27.92. By allowing its employees to accrue benefits under the old plan for five additional years, El Paso significantly improved older workers' retirement benefits relative to younger workers.
[Remainder of page intentionally left blank]
8

Case 1:04-cv-02686-WDM-CBS Document 325-14 Filed 02/26/09 USDC Colorado Page 9 of 9

I have read this Declaration consisting of this and 8 other pages. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed this ).(, day of February, 2009.

~~

Michael P. Ward

Firmwide:8835n1 0.9 021648.1075

9

 
 Case 1:04-cv-02686-WDM-CBS Document 338-6 Filed 04/07/09 USDC Colorado Page 1 of 6
Response to the Report of Robert A. Bardwell, Ph.D. Wayne Tomlinson et al. v. El Paso Corporation and El Paso Pension Plan
by Michael P. Ward
I am Senior Vic1e. President and Senior Analyst at Welch Consulting. On April 15, 2008, I submitted a Statement of Qualifications and Report of Findings on behalf of defendant El Paso Corporation in this matter. My education, qualifications, experience and prior cases were listed in that report and are incorporated here by reference. In that report, I analyzed the effect of age on the annual accrual of pension benefits resulting from El Paso's transition from a final average pay formula to a cash balance formula. On April 18, 2008 I received a copy of the Preliminary Report produced by Plaintiffs' statistical expert Robert A. :Bardwell, Ph.D. This report is a response to the methods and conclusions presented by Dr. :Bardwell.
Dr.Bardwell's Illogical Useof "Wear-Away"
Dr. Bardwell's a2n. alysis of the age impact of El Paso's pension plan transition focused on so-called "wear-away" periods. He uses this term to refer to periods of time during which an employee's pension, calculated as an age-65 benefit under the final average pay formula, would result in a greater benefit than the benefit calculated under the cash balance plan. Because the age-65 benefit is fixed after the transition (even though it is higher) under the final average pay plan, Dr. Bardwell believes that the employee is disadvantaged during this period.
3. His calculation of the "wear-away" period started at the end of the five-year plan transition, and ended when an individual's cash balance plan benefit amount grew to exceed the age-65 benefit under the final average pay formula. Dr. Bardwell conducted age comparisons and. determined that older workers had disproportionately longer "wear-away" periods than younger workers because they would receive higher age-65 benefits under the final average pay formula than from the cash balance plan. From this comparison, he concluded that there was an unfavorable, age-related impact on older employees.
4. Dr. Bardwell based his calculation of economic damages on the durations of these "wearaway" periods. Damages are calculated as the accrual in the cash balance plan during the wearaway period. The longer the wear-away, the higher the damages. He did not take into account the value of the minimum benefit at all in his damage calculations.
5. As I explain below, Dr. Bardwell's use of the "wear-away" to measure disparate treatment by age is confusing and fundamentally incorrect. He defines the "wear-away" in his report (page 4) as "a period of years during which the value of the actual retirement benefit ceased to grow at all." The confusion arises because Dr. Bardwell mistakenly equates the "wearaway" period with a "freeze" of pension benefits under the final average ("minimum benefit") pay plan. In my April 15, 2008 report I showed that in the years following the transition, most employees did not experience a freeze because the minimum benefit that was immediately
1
EXHIBIT E

Case 1:04-cv-02686-WDM-CBS Document 338-6 Filed 04/07/09 USDC Colorado Page 2 of 6
receivable ' continued to increase for older workers as they reached enhanced early retirement formulas? In fact, most (97%) of employees who left El :Paso after the transition were eligible for benefits under these plan provisions (usually taken in the form of an actuarially-equivalent lump sum).3 This fact is simply ignored by Dr. Bardwell.
6. What Dr_ Bardwell (through Plaintiffs' actuarial expert Claude Poulin) actually calculated was the period of time during which the age-65 minimum benefit was higher than the cash balance benefit. For many older workers, the value of the minimum benefit far exceeded the cash balance account benefit at the end of the five-year transition. This was because El Paso did not choose to simply terminate the final average pay plan on January 1, 1997 and replace it with an equal-valued cash balance plan. Instead, El Paso provided a five-year extension of the minimum benefit during which employees' service years and final average pay were allowed to continue to grow. Employees retiring after the transition would receive the higher of either the cash balance formula or the immediate minimum benefit formula with pay and service fixed at the transition end date_
7. Although the cash balance plan and the minimum benefit started the five-year transition period as actuarially equal, the minimum benefit formula was, by and large, a more generous benefit. During the five-year transition period, its value grew much faster than the cash balance plan for many older employees, and yielded a better immediate benefit by the end of the transition period. Although this was a distinct advantage to older employees, Dr. Bardwell's analysis turns this on its head as discriminatory, because it resulted in a longer period for the cash balance account to "catch-up" to the now-higher immediate minimum benefit. By focusing only on the period after the five-year transition, Dr. Bardwell ignores the initial benefit boost that El Paso provided, and then penalizes El Paso for the boost because it lengthened the "wearaway" period. Although El Paso's decision to extend the minimum benefit for an additional five years unquestionably benefited older employees, by Dr. Bardwell's logic it caused greater disparity and higher damages to older workers.
8. This can be seen in Figure 1, which shows the monthly annuity accrued by an El Paso employee at each potential retirement age, from 1996 to 2007. Employee # 370844 was 51 years old at the start of the transition. Figure 1 shows the age 65 minimum benefit used by Dr. Bardwell (blue diamonds), the immediate benefit (red triangles) and the cash balance benefit (green squares). All are expressed as monthly annuity values. Figure 1 also separates the 5-year transition period (which is not included in Dr. Bardwell's analysis), from the periods of presumed "wear-away" calculated by Dr. Bardwell.
In my April 15 report, I used the term "minimum benefit" to refer to the annuity payable immediately upon termination, as either an early retirement benefit, a terminated vested benefit for employees not eligible for early retirement benefits or an age 65 benefit. In the present report, I use the term "immediate benefit" to distinguish it from the "Age 65 minimum benefit" calculated by Dr. Bardwell. Only the term, not the calculations, changed between my April 15 report and this report. -- These formulas can include an early retirement reduction, a supplemental early retirement benefit, and a terminated vested benefit, depending on age and service at the date of termination. 3 It is my understanding that some employees were terminated through layoffs, which resulted in enhanced early retirement provisions. These individuals were not identifiable in the data I received, and so their benefits were computed according to the regular provisions in the plan.
2

Case 1:04-cv-02686-WDM-CBS Document 338-6 Filed 04/07/09 USDC Colorado Page 3 of 6
9. During the five-year transition period, the immediate minimum benefit (red triangles) more than quadrupled, averaging 35% growth per year. Over the same period the cash balance plan (green squares), which started out actuarially equal to the minimum benefit, grew at only half that rate (about 17% per year). This resulted in an immediate minimum benefit that was considerably higher than the cash balance benefit by the end of the transition period. This advantage in the immediate minimum benefit over the cash balance plan rose to approximately $1,100 by 2002, and is the source of the "wear-away" that Dr. Bardwell identifies as a having a negative impact on older workers.
10. El Paso's decision to grant the five-year transition benefit was unquestionably advantageous to older workers, and is completely omitted from Dr. Bardwell's analysis. To assess the value of this plan provision, I computed the value of retirement benefits under the assumption that the transition period never took place and instead age-65 benefits under the final average pay formula were frozen as of the date of conversion to the Cash Balance Plan. I compared these hypothetical benefits with the actual value of retirement benefits at the end of the transition period, and found that those extra years of accrual represented a gain of $ 8,270 per year in retirement benefits for older workers (age 40 and over) versus $ 1,982 per year gain for younger workers. The number of standard deviations separating these two numbers is 27.92. By allowing its employees to accrue benefits under the old plan for five more years El Paso improved the retirement benefits of older workers significantly, relative to younger workers.
11. Figure 1 also illustrates a key point in my April 15 report - that for a significant period of time for which Plaintiffs assert benefits were frozen, the immediate minimum benefit continued to grow.5 For employee #370844, the immediate minimum benefit grew for four more years, from 2001 to 2005. For the next two years, the immediate minimum benefit was at its maximum amount and did not grow. Dr. Bardwell's "wear-away" calculation of six years for this employee is three times too long.
12. Interestingly, Figure 1 also shows that the cash balance plan can also experience periods without growth. For Employee # 370844, the cash balance plan (green squares) did not grow from 2001 and 2002 because of a grandfather Rule of 85 clause providing a separate minimum benefit for the cash balance plan.6 Once the computed value of the cash balance plan exceeded the guaranteed grandfathered amount, it resumed annual increases. For some employees affected by the Grandfather benefit, the period without growth to the cash balance plan value went on for several years. Neither Dr. Bardwell nor Mr. Poulin address this in their analyses.
13. To correct for Dr. Bardwell's errors, I recalculated the time periods for which benefits were "frozen" (i.e. that employees had reached their maximum benefit under the plan) using the immediate minimum benefit. Under this definition, only 2,.9% of the employees experienced any period of "frozen" minimum benefit? Of all of the years of employee data that were compiled
4 In the case of Coastal, where the transition period ended in March 2006, the end of 2006 was used. 5 The Mercer Calculation Reference Manual states, at page 40: "Note that for purposes of Early Retirement eligibility and Early Retirement factors, Credited Service continues past December 31, 2001." G The Grandfathered Rule of 85 amount is described on page 43 of the Mercer Calculation Reference Manual.
Similar to Dr. Bardwell's analysis, this is calculated only for the periods the immediate minimum benefit is not exceeded by the cash balance plan benefit.
3

Case 1:04-cv-02686-WDM-CBS Document 338-6 Filed 04/07/09 USDC Colorado Page 4 of 6
(from the end of the transition periods to the end of 2007), only 1.8% of the years show a "frozen" period. $
Dr. Bardwell's Misleading Estimates of Economic Damages .
Dr. Bardwell's c1a4l.culations of economic damages are similarly infected by this erroneous method. In section 5 of Dr. Bardwell's report he calculates benefit reductions and "damages." The description of these calculations, and the "Reduction in Benefits" figures in Table 1, differ from the damages that he actually presents in his Table 2. Also, they are entirely misleading.
15. In his introduction to Section 5, and in his calculations in Table 1, Dr. Bardwell calculates9 the difference between benefits that would accrue under the cash balance plan and the benefits that would have accrued had the final average pay plan continued on unaltered. This calculation is totally irrelevant and has nothing to do with the claims raised in this case.
16. Moreover, the "Percent Reduction in Benefits" calculations in Dr. Bardwell's Table 1 have nothing at all to do with a reduction in benefits. Not surprisingly, employees over the age of 60 did not have their benefits reduced by over 90%--that is nonsense. These numbers are simply a calculation showing what percent of the cash balance accruals contributed to an increase in the employee's benefit. Obviously, if an employee is in a "wear-away" period, none of these accruals impact the employee's benefit because the employee is entitled to more than this amount.
In his Table 2, D17r. Bardwell totals up the numbers presented by Mr. Poulin. In this table, unlike his Table 1, the numbers reflect cash balance accruals during periods of wear-away. It accumulates the amount that each employee would have received had every dollar of cash balance accrual gone to them, on top of their already higher minimum benefit payout, during the "wear-away" period.
18. Finally, all of these calculations completely miss the obvious point that age-65 benefits are, as I showed in my first report, almost always irrelevant-these employees only rarely take benefits at age 65 or older. What is relevant is the benefit they actually receive, the immediate minimum benefit under the early retirement provisions of the El Paso Retirement Plan.
Calculation of Economic Damages, If Any
I developed an a19lt.ernative calculation of "damages" that accumulates cash balance accruals during periods in which retirement benefits are actually fixed and higher than the cash balance benefit. Whether these numbers are actual damages or not is beyond the scope of my expertise. Following Dr. Bardwell's principle, however, that any period of time during which pension benefits are not accruing and the cash balance is, is subject to damages, I used the correct measure of benefit accruals - the immediate minimum benefit - to calculate periods of "frozen" immediate minimum benefits. As discussed above, only a small fraction of the
$ Of 2,011 employees with usable data, only 58 (2.9%) experienced any period of time during which a "frozen" minimum benefit was not exceeded by the cash balance plan value. 9 Actually, Dr. Bardwell only accumulates the calculations made by Mr. Poulin.
4

Case 1:04-cv-02686-WDM-CBS Document 338-6 Filed 04/07/09 USDC Colorado Page 5 of 6
employees (2.9%) and an even smaller fraction of the employee-years (1.8%) experienced no accrual of benefits and therefore damages. 20. I computed damages as the change in the value of the cash balance account during the years an employee did not accrue any retirement benefits. Damages for employees who experienced a freeze in their retirement benefits amount to $ 1,810,074 10. hi performing these calculations, I am not opining that Dr. Bardwell's approach to damages makes any economic sense -- it does not - I am only correcting his erroneous assumptions. 21. As noted previously, El Paso's continuation of the minimum benefit plan during the five year transition period was a significant advantage to older workers. When. the. effect of the five year transition benefit is taken into consideration, any potential disadvantage to older workers attributable to the "wear-away" is more than offset by the increased pension values.
Michael P. Ward, Ph.D. May 15, 2008
10 These damages are based on 2,011 employees with pension benefits that could be reliably calculated. Damages are extrapolated for 508 additional employees. I have not computed damages for 385 .ANR and Coastal Mart employees.
5

Case 1:04-cv-02686-WDM-CBS Document 338-6 Filed 04/07/09 USDC Colorado Page 6 of 6

Employee # 370844 Original Plan Date of Birth Date of Hire Transition Start: Age @ Transition Start: Service @ Transition Start:

Year of Benefit 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

Age at Year End 51 52 53 54 55 56 57 58 59 60 61 62

Immediate Minimum Benefit at Each Age $445.51 $554.04 $658.53 $805.06
$1,815.50 $1,992.94 $2,035.71 $2,078.47 $2,121.35 $2,139.63 $2,139.63 $2,139.63

Figure 1 Bardweil's "Wear-Away" Ignores Early Retirement Benefit Growth from Age 56-60

El Paso 6/5/1945 6/5/1972 1/1/1997
51.6 23.5

Age 65 Minimum
Benefit $i,297.53 $1,471.15 $1,592.97 $1,771.70 $1,991.86 $2,139.63 $2,139.63 $2,139.63 $2,139.63 $2,139.63 $2,139.63 $2,139.63

Cash Balance Plan Benefit at Each Age $405.48 $464.76 $531.36 $605.55 $685.93 $893.48 $893.48 $910.04 $994.82 $1,086.96 $1,191.86 $1,309.30

Immediate Minimum Benefit (the Red Line) Dramatically Increased During the 5 Year Transition Period, 1997-2002 $2,500 $2,000
$500

While the Age 65 Benefit (Blue Line) Calculated by Bardwell is Fiat, the Early Retirement Benefit Confined to Increase from 56 - 60

After Age 60, the Minimum Benefit is No Longer Growing

$0

51

52 53

54 55

56

57

58

59

60

61

62

-4-Age 65 Benefit -I-Cash Balance Benefit -A-Immediate Minimum Benefit

 
 Case 1:04-cv-02686-WDM-CBS Document 338-7 Filed 04/07/09 USDC Colorado Page 1 of 3

Preliminary Rebuttal Report on the Impact of Amending the Defined Benefit Retirement Plan to the Cash Balance Pension (CBP Select) on Older Employees
In re: Wayne Tomlinson, Alice Ballesteros, and Gary Muckelroy, individually and on behalf of all others
similarly situated, v. El Paso Corporation and El Paso Pension Plan Civil Action No. 4-cv-02686-WDM-CBS United States District Court for the District of Colorado
Prepared for
Barry D. Roseman Mcnamara, Roseman, Martinez and Kazmierski
1640 East 18th Avenue Denver, CO 80218 (303) 333-8700
Stephen R. Bruce Suite 210
805 15th St., NW Washington, D.C. 20005
202-371-8013

Bardwell Consulting Ltd. Robert A. Bardwell, Ph. D.
4801 W. Yale Ave. Denver, Colorado 80219
(303) 934-3851
May 15, 2008

EXHIBIT F

Case 1:04-cv-02686-WDM-CBS Document 338-7 Filed 04/07/09 USDC Colorado Page 2 of 3

Context and Preliminary Findings

Context of the Report

This is a preliminary rebuttal report responding to defense experts' reports: Statement of Qualifications and Report of Findings in Wayne Tomlinson et al v El Paso Corporation and El Paso Pension Plan, Pursuant to Federal Rule 26, submitted by Michael P. Ward on April 15, 2008; and In re El Paso Energy Corporation Pension Plan: Expert Report of Ian H. Altman, FSA, submitted on the same day. I previously submitted a report in this litigation, Preliminary Report on the Impact of Amending the Defined Benefit Retirement Plan to the Cash Balance Pension (CBP Select) on Older Employees, also submitted on April 15, 2008.

The current report includes a brief overview of issues related to the two defense experts' reports, but is limited because defendants have not produced the spreadsheets or calculations that their experts used in preparing their reports. This report may be revised and supplemented when additional information is produced by defendants.

Data and Analytic Deficiencies in Dr. Ward's Report

Dr. Ward lists in his report a number of analyses that he performed. However, since he has not provided the data, computer programs, or computer output for his analyses, they cannot be replicated or tested:

1.

In paragraph 8, Dr. Ward describes the method he used to select the subset of 2,904 employees on

which he based his analyses. Dr. Ward has not provided the analytic methods or results to verify this

selection process.

2.

In paragraph 9, Dr. Ward describes a multi-stage process that he used to exclude 648 of the 2,904

employees because "they had special circumstances that made the computation of their retirement

benefits impossible." It is not practical to verify or replicate the exclusions Dr. Ward advocates

without access to his data, computer code, and results.

3.

In paragraph 10, Dr. Ward states that he and his associates "calculated the minimum and transition

benefit values at the start of the transition period" but that "benefits for some employees could not

be readily determined." Without the data and methodology that Dr. Ward used, it is not possible to

test or replicate the difficulties that he encountered in calculating benefits.

4.

In paragraphs 10 and 11, Dr. Ward discusses one particular complication in estimating benefits that

results from the impact of social security benefits on Sonat and Coastal benefits. As a result, Dr.

Ward is forced to rely on an ad hoc method of determining whether his estimates are acceptable,

excluding from his analysis employees for whom his estimates "differed more than 10% from the

actual value shown in the data." He does not specify where he found the actual value in the data or

why he did not simply use those actual values. In paragraph 11, Dr. Ward states that he excluded

an additional group of El Paso employees for whom "our calculations differed more than 5%" from

the actual values." Again, he does not specify where he found the actual values or why he did not

use them. It is not possible to test or replicate his results without detailed backup data and computer

files documenting these procedures.

5.

In paragraphs 27 and 28 Dr. Ward applies early retirement benefits, but fails to state clearly that

these benefits apply only to employees still active when they reach age 55. Complete data and

documentation of methodology is required to test whether Dr. Ward erroneously applied early

retirement benefits to all older workers. This concern is raised again in paragraphs 38 through 41

where Dr. Ward calculates the average benefit for older and younger employees, since these

©Bardwell Consulting

Page lof 2

Case 1:04-cv-02686-WDM-CBS Document 338-7 Filed 04/07/09 USDC Colorado Page 3 of 3

calculations may be tainted by the same improper interpretation of early retirement benefits.

6.

An additional problem is raised in paragraphs 38 through 41 where Dr. Ward clearly states that he

applies a different method of calculating growth in benefits, depending on the age of the employee.

He states that he calculates "the average annual dollar increase of the cash balance benefit for

younger workers" and compares it to the "increase in early retirement benefit for the same period

for workers age 40 or over" (emphasis added). Again, Dr. Ward fails to provide the data and details

of computations necessary to replicate his results.

7.

In paragraphs 34 through 41, Dr. Ward attempts to rebut the age claim in this litigation by comparing

benefits accrued by older and younger employees. Dr. Ward puts a statistical gloss on his

comparison in paragraphs 38 and 39. However, he provides no backup data or calculations for the

values that he computes: $6,861 average increase per year of service for younger employees versus

$16,081 for older employees. Without this documentation, the validity of the statistical comparison

in paragraph 41 cannot be checked. These concerns are in addition to egregious flaws likely in Dr.

Ward's methodology, the evidence for which is detailed in plaintiffs' expert Claude Poulin's

declaration submitted May 15, 2008.

Data and Analytic Deficiencies in Mr. Altman's Report

Defendants produced an additional expert report in this litigation, entitled In re El Paso Energy Corporation Pension Plan: Expert Report of Ian H. Altman, FSA. Mr. Altman's report suffers from the same lack of backup data and documentation found with Dr. Ward's report.

In addition, Mr. Altman's results have little relevance to this litigation. All of his presentations compare populations of older and younger employees as groups, and then apply stereotypical factors to each group to compute benefits. As a result, his presentations have no probative value regarding costs incurred by the defendant for individual employees. Mr. Altman's observation that a preponderance of benefit costs can be attributed to older employees is an artifact of the age of the work force and the stereotypical factors he employs to compute benefits, and is not demonstrative regarding the cost of benefits for individual older employees.

Robert A. Bardwell, Ph. D.

©Bardwell Consulting

Page 2of 2

 
 Case 1:04-cv-02686-WDM-CBS Document 237 Filed 06/06/2008 USDC Colorado Page 1 of 26
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 04-cv-2686 (WDM/CBS)
WAYNE TOMLINSON, ALICE BALLESTEROS, GARY MUCKELROY, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
EL PASO CORPORATION, and EL PASO PENSION PLAN,
Defendants.
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF A CONTINUANCE UNDER RULE 56(f) AND IN OPPOSITION TO DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT ON CLAIM V
Stephen R. Bruce Allison C. Pienta 805 15th St., NW, Suite 210 Washington, D.C. 20005
Barry D. Roseman McNamara, Roseman, Martinez & Kazmierski, LLP 1640 East 18th Avenue Denver, CO 80218-1202
Attorneys for Plaintiffs

Case 1:04-cv-02686-WDM-CBS Document 237 Filed 06/06/2008 USDC Colorado Page 2 of 26
Table of Contents Plaintiffs’ Response to Defendants’ Statement of Undisputed Material Facts . . . 1 I. El Paso’s Motion Should Be Continued Under F.R.C.P. 56(f) Until
Discovery Is Complete Under the Joint Proposal for Bifurcating Discovery Which the Court Adopted on April 28, 2008 . . . . . . . . . . . . . . . 6 II. Summary Judgment Cannot Be Granted In El Paso’s Favor Where Genuine Issues of Material Fact Exist. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. The Standard in Chiles Is “Some Significant Reliance” or “Possible
Prejudice” From a Faulty SPD. If these Reductions Were Disclosed, an Employee Could Have Learned About Them From Co-Workers “Even If He Never Read the SPD Himself” . . . . . . . . . . . . . . . . . . . 10 B. El Paso’s SPDs and Other Written Communications Never Disclosed Significant Benefit Reductions Like the 10 or More Year Periods of Wear-Away and 89% Reductions in Future Benefits that Plaintiffs’ Experts Have Found . . . . . . . . . . . . . . . . . 13 C. The Department of Labor’s Regulations Require Summary Plan Descriptions to Tell Plan Participants that the Benefits They Reasonably Expect May Be Reduced or Lost. . . . . . . . . . . . . . . . . 16 D. Chiles Does Not Require a Showing of “Extraordinary Circumstances”; Even If It Did, Additional Discovery May Confirm that El Paso Actively Concealed the Draconian Benefit Reductions Effected by the Cash Balance Conversion. . . . 18 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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TABLE OF AUTHORITIES FEDERAL CASES
Amara v. CIGNA Corp., 534 F. Supp. 2d 288 (D.Conn. 2008) ........ 8, 17, 20 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................. 9 Burke v. Kodak Retirement Income Plan, 336 F.3d 103 (2d Cir. 2003),
cert. denied, 540 U.S. 1105 (2004) ................................................... 11-12 Burstein v. Ret. Account Plan for Employees of Allegheny Health Educ.
and Research Found., 333 F.3d 365 (3d Cir. 2003) ............................. 19 Byers v. City of Albuquerque, 150 F.3d 1271 (10th Cir. 1998) .................. 10 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................. 9 Chiles v. Ceridian Corp., 95 F.3d 1505 (10th Cir. 1996) ................ 11-12, 18 Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513
(10th Cir. 1994) ................................................................................... 9-10 Frommert v. Conkright, 433 F.3d 254 (2d Cir. 2006) ................................. 12 Gridley v. Cleveland Pneumatic Co., 924 F.2d 1310 (3d. Cir. 1991) ......... 19 Hammond v. Eighth District Electrical Benefit Fund, 36 Fed. Appx. 369
(10th Cir. 2002) ...................................................................................... 18 Jordan v. Federal Express, 116 F.3d 1005 (3d Cir. 1997) ......................... 19 Manginaro v. Welfare Fund of Local 771, I.A.T.S.E., 21 F. Supp. 2d 284
(S.D.N.Y. 1998) ..................................................................................... 11 Natural Wealth Real Estate, Inc. v. Cohen, 2008 WL 511761 (D.Colo.
Feb. 21, 2008) .......................................................................................... 7
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Price v. Western Resources, Inc., 232 F.3d 779 (10th Cir. 2000) ................. 6 Register v. PNC Finance Services, 477 F.3d 56 (3d Cir. 2007) .................. 19 Estate of Ritzer v. National Organization of Industrial Trade Unions
Insurance Trust Fund, 822 F. Supp. 951 (E.D.N.Y. 1993) ................... 11 FEDERAL STATUTES, REGULATIONS AND RULES
29 C.F.R. §2520.102-3(l) ............................................................................ 17 29 C.F.R. §2520.104b-1(b)(1) ....................................................................... 2 29 C.F.R. §2520.104b-1(c)(1) ....................................................................... 2 65 Fed. Reg. 70226 (Nov. 21, 2000) ........................................................... 17 F.R.C.P. 56(c) .............................................................................................. 9 F.R.C.P. 56(f) ............................................................................................... 6
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Plaintiffs’ Response to Defendants’ Statement of Undisputed Material Facts 1. Plaintiffs oppose Defendants’ incorporation by reference of
Paragraphs 1-5 from the statement of undisputed facts in support of its motion for partial summary judgment on the ADEA claim (dkt. #221). Rule 10(c) does not support incorporation by reference from other motions. Moreover, Plaintiffs’ opposition disputed each of those statements--with the exception of the first one. See Pls. 4/28/2008 Opp.(dkt.#229) at 1-2. Although Plaintiffs maintain that Rule 10(c) does not allow for this kind of incorporation by reference, we incorporate our responses by reference to comply with the Court’s page limits.
2. Plaintiffs dispute that El Paso distributed a Summary Plan Description (SPD) to its employees in August 2002. No one from El Paso has offered any evidence about how SPDs were distributed to employees. Two of the named Plaintiffs testified that they did not receive the 2002 SPD. Ex. 1 (Ballesteros Depo.) at 63, line 23 - 64, line 3; Ex. 2 (Muckelroy Depo.) at 74, line 5 - 75, line 1. Mr. Muckelroy testified that if he had received an SPD, he would have kept it in his files. Ex. 2 at 174, line 25 - 175, line 17. To date, discovery has not established who drafted El Paso’s SPDs or how they were distributed–whether by mail, by hand, or through online access. It appears that the 2004 SPD which El Paso attaches was only posted online and was not posted in compliance with
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Department of Labor regulations. See Ex. 3 and 29 C.F.R. §2520.104b-1(b)(1) and 1(c)(1).1 Two of the other SPDs which Defendants attach to their motion are in draft form, i.e., the cover pages bear legends indicating they are not final products. See Defs. Exs. B and C (“Date Document Last Changed: December 22, 1998” and “Date Document Last Changed: July 1, 1999”).
3. Plaintiffs dispute that none of the Plaintiffs read the SPD. Mr. Tomlinson testified that he read the SPD to learn how his benefit was calculated. Ex. 4 (Tomlinson Depo.) at 104, line 10 - 106, line 18; 132, line 14 - 135, line 8. As stated, the other two Plaintiffs testified that they never received the SPD, not that they received it but did not read it.
4. Plaintiffs dispute that El Paso’s written communications to employees adequately or understandably described the benefit reductions from the conversion of El Paso’s pension plan to a “cash balance” formula. A presentation by the Mercer consulting company to El Paso stated that cash balance conversions are “popular with employers” because of “Masking a cut in pension plan benefits.” Ex. 5 (EPTO 3505).
1 The regulations provide that an SPD may be provided through electronic media only if the distribution “results in actual receipt of transmitted information” and notice is simultaneously provided that “apprises the individual of the significance of the document when it is not otherwise reasonably evident as transmitted” and “the right to request and obtain a paper version of the document.” 29 C.F.R. §2520.104b-1(c)(1).
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4.a. Plaintiffs’ communications expert, Professor Stratman, analyzed the 2002 SPD and determined that “participants would find nothing within it to suggest that their benefits under the new CBP Select plan would be significantly less than those in their existing final average pay plans.” Ex. 6 (Stratman Rpt.) at 15. There were “no statements, illustrative examples, or warnings” of wear-away periods or benefit reductions. Id. at 13-15. Professor Stratman also found no information in the SPD that “permits participants to compare directly, in ‘side by side’ fashion, the benefit they would earn under the old plan (had it continued) and the benefit provided under the new cash balance plan.” Id. at 13.
4.b. It is undisputed that El Paso was putting draconian benefit reductions in place. An August 14, 1996 presentation by Mercer for the El Paso Pension Committee states that the “Impact on Employees” is a “36% average reduction in pension benefits at age 60.” Ex. 7 (EPTO 3669). Plaintiffs’ actuarial and statistical experts, Mr. Poulin and Dr. Bardwell, have found that the benefit reductions were even worse. They found that El Paso’s plan design produces periods of wear-away with no additional benefit accruals that often last more than 10 years. Ex. 8 (Poulin Rpt.) at 13-17 and Ex. 9 (Bardwell Rpt.) at 5-12. Based on individual-by-individual calculations, their reports detail how future benefits are reduced on average by 89% after ten years for employees in the old El Paso/EPNG
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group. Ex. 8 at 8-13 and Ex. 9 at 12-14. El Paso’s experts have not disputed these reductions. The May 15th rebuttal report of El Paso’s actuarial expert, Ian Altman, concedes that it is “not in dispute” that “the rate of benefit accrual under the cash balance plan is significantly lower than under the prior plan formula.” Ex. 10 (Altman Rpt.) at 4.
4.c. Rather than disclosures of wear-aways and benefit reductions, Professor Stratman found that the SPD and other communications only provided examples of “winners” and no “losers” and “misleadingly reassured that CBP Select benefits would be paid continuously following the five year transition period” by stating that “The value of your El Paso Cash Account Benefit will continue to grow as long as you maintain a balance in your CBP Select Account” and “Your account increases in value over time.” Ex. 6 at 7, 13 and 15.
4.d. Plaintiffs dispute that the benefit reductions were disclosed in any other written communications besides the SPD. The January 1996 “Employee Update” to which El Paso now turns was a 45-page document, which included a one-page “overview” about “a new type of plan called a ‘cash balance’ plan.” Defs. Ex. H at 26. The one-page overview stated that benefit would accrue at a “lower rate” under the cash balance plan but also stated that “[d]etails of this new type of plan have not been finalized.” At that time, El Paso had not decided
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whether to include the transition provision which continued the prior highestaverage-pay formula for 5 years. A subsequent “Program Highlights” brochure distributed in October 1996 after the Plan was finalized did not include any language about employees earning benefits “at a lower rate,” thereby indicating that this was not a feature of the final version of the plan Ex. 11. The SPD on which El Paso relies also fails to mention any lower rate, further indicating that this was not a feature.
4.e. Plaintiffs also dispute that El Paso’s purported 204(h) notice, a onepage document entitled “Notice of Plan Changes” from December 2001 told participants that they would experience a significant reduction in the rate of benefit accrual. Plaintiffs’ communications expert, Professor Stratman, explains that lay persons cannot comprehend the legalistic language in this notice. Ex. 6 at 17-20. Professor Stratman found that the phrase “accruals under the Plan may effectively cease,” in the fifth paragraph of the notice, is ambiguous and would likely cause readers to believe that statement “simply refers to the cessation of their old plan benefits,” rather than the pay and interest credits provided by the cash balance plan. Id. at 18-19. Professor Stratman’s report cites the deposition testimony of each of the three named Plaintiffs to show that they did not understand the legal jargon in the notice. Id. at 19-20. Again, El Paso has not
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provided any expert testimony or other contrary evidence to dispute Professor Stratman’s analysis or the deposition testimony of the three named Plaintiffs.
4.f. Plaintiffs further dispute that any individual Compensation Statement told participants about significant benefit reductions. The bar graph upon which El Paso relies from a 1999 Compensation Statement, see Defs. Ex. I at P 47, includes no accompanying text or description of wear-away periods or benefit reductions. I. El Paso’s Motion Should Be Continued Under F.R.C.P. 56(f) Until
Discovery Is Complete Under the Joint Proposal for Bifurcating Discovery Which the Court Adopted on April 28, 2008. Pursuant to F.R.C.P. 56(f), Plaintiffs request that the Court order a continuance until the parties complete discovery and the Court decides the pending motions before it, namely, Defendants’ motion for partial summary judgment based on the timeliness of the ADEA charge and the Plaintiffs’ motion for reconsideration of dismissal of the backloading and Section 204(h) claims. “Rule 56(f) allows a court to stay or deny a summary judgment motion in order to permit further discovery if the nonmovant states by affidavit that it lacks facts necessary to oppose the motion.” Price v. Western Resources, Inc., 232 F.3d 779, 783 (10th Cir. 2000). A Rule 56(f) affidavit is “entitled to liberal treatment” and must “identify the probable facts not available” and “what steps have been
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taken to obtain those facts” and “explain how additional time will enable [the nonmovant] to rebut the movant’s allegations of no genuine issue of fact.” Natural Wealth Real Estate, Inc. v. Cohen, 2008 WL 511761, *2-3 (D.Colo. Feb. 21, 2008).
An affidavit by Plaintiffs’ counsel is attached as Exhibit 12. As the affidavit explains, at the April 16, 2008 status conference, Magistrate Judge Shaffer stated that he wanted the parties to bifurcate discovery and hold off on further discovery and motions. See Ex. 12 (Bruce Aff.) at ¶3. At Magistrate Judge Shaffer’s request, the parties developed a bifurcated discovery schedule. It was only after this schedule was negotiated and the parties left the courtroom that El Paso’s counsel announced to Plaintiffs’ counsel that it intended to file the instant motion. When Plaintiffs’ counsel said that the schedule was negotiated on the basis that discovery related to Claim V (the SPD claim) would take place later, Defendants’ counsel represented that its motion would not turn on any facts to which any discovery could relate. Id. at ¶4 and Joint Proposal (dkt. #227) at 2.
Plaintiffs can offer a number of reasons why Defendants’ representation is inaccurate. As the Joint Proposal describes, the parties stipulated that the deposition of El Paso’s Rule 30(b)(6) witness on “benefit reductions, wear-aways and disclosures” will be deferred. Id. at 3. That deposition is clearly relevant to
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the SPD claim. Depositions of individual benefit department employees and executives who El Paso has identified as involved in the planning and implementation of the changes, including the related benefit communications, have also been deferred. Id. at 3. To date, discovery has not even established whether El Paso’s SPDs were drafted by consultants or how they were distributed–whether by mail, by hand, or through online access. Further discovery may reveal instructions to the draftspersons about what to include in the disclosures. Finally, discovery may show that El Paso’s concealment of the drastic benefit reductions brought about by the cash balance formula was deliberate, as indicated by Mercer’s presentation to El Paso about “masking” benefit cuts. Ex. 5. In Amara v. CIGNA Corp., 534 F.Supp.2d 288, 343 (D.Conn. 2008), the plaintiffs uncovered emails and other communications about not offering participants any comparisons of benefits or other disclosures of the reductions in order to avoid any “adverse employee reaction.”
Because the parties agreed that the discovery related to Claim V would be deferred until the Court’s decisions on the timeliness of the ADEA claim and the motion for reconsideration, this discovery has not taken place. Because the additional discovery is relevant and necessary for Plaintiffs to fully oppose Defendants’ present motion, the Court should order a continuance of El Paso’s
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motion under Rule 56(f) until discovery is completed under the Joint Proposal that Magistrate Judge Shaffer approved. If the Court wants to consider this motion concurrently with the pending dispositive motions, Plaintiffs would request that the depositions and production of documents related to the SPD Claim be moved to the category of discovery which is not deferred. II. Summary Judgment Cannot Be Granted In El Paso’s Favor Where
Genuine Issues of Material Fact Exist. Even if the Court proceeds to consider El Paso’s motion, summary judgment should not be granted because genuine issues of fact exist with respect to the distribution of the SPDs, the adequacy and understandability of El Paso’s disclosures, El Paso’s concealment of the benefit reductions, and the prejudice resulting therefrom. Pursuant to Federal Rule 56(c), summary judgment may only be granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” F.R.C.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). The moving party has the initial burden of showing an absence of evidence to support the nonmoving party’s case. Celotex
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Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets that burden, the other party must demonstrate a “genuine issue for trial on a material matter.” Concrete Works, 36 F.3d at 1518. The factual record is viewed in the light most favorable to the nonmovant. Byers v. City of Albuquerque, 150 F.3d 1271,1274 (10th Cir. 1998).
A. The Standard in Chiles Is “Some Significant Reliance” or “Possible Prejudice” From a Faulty SPD; If these Reductions Were Disclosed, an Employee Could Have Learned About Them From Co-Workers “Even If He Never Read the SPD Himself.”
El Paso has provided no evidence that it distributed SPDs with the disclosures of benefit reductions and losses that are required by law. To the contrary, named Plaintiffs Alice Ballesteros and Gary Muckelroy testified that they do not recall receiving or ever seeing the 2002 SPD. Ex. 1 at 63, line 23 - 64, line 3; Ex. 2 at 74, line 5 - 75, line 1. Because Mr. Muckelroy keeps practically everything related to his retirement, it is unlikely that he received an SPD and did not keep it. See Ex. 2 at 174, line 25 - 175, line 17. Based on their testimony that they never received an SPD, El Paso’s suggestion that they received an SPD but did not read it is misleading.
Mr. Tomlinson has testified that he received the 2002 SPD and that he read it to learn how his benefit was calculated. Ex. 4 at 104, line 10 - 106, line 18; 132,
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line 14 - 135, line 8. Mr. Tomlinson believes that he specifically requested the SPD, and he knows he did not learn that his benefits had been reduced from reading it.
Assuming the SPDs had been distributed and that they disclosed substantial benefit reductions, it is likely that a participant like Mr. Muckelroy, Ms. Ballesteros and Mr. Tomlinson would have heard about the reductions from fellow co-workers “even if he never read the SPD himself.” Indeed, if El Paso had disclosed drastic reductions like this, it is unlikely that there would be any El Paso employees who did not hear about it. In Burke v. Kodak Ret. Income Plan, 336 F.3d 103, 113 (2d Cir. 2003), cert. denied, 540 U.S. 1105 (2004), the Second Circuit cited the decision in Manginaro v. Welfare Fund of Local 771, I.A.T.S.E., 21 F.Supp.2d 284, 297 (S.D.N.Y. 1998), for the proposition that had a limitation been adequately disclosed “via the SPD, it is likely that [the plaintiff] would have learned of this limitation from his employer, his co-workers, or the union, even if he never read the SPD himself.”2
Chiles v. Ceridian Corp., 95 F.3d 1505 (10th Cir. 1996), does not shut the
2 Accord, Estate of Ritzer v. Nat’l Org. of Indus. Trade Unions Ins. Trust Fund, 822 F.Supp. 951, 955 (E.D.N.Y. 1993) (“Ritzer would have learned about [the rule] from co-workers, even if he had not read the plan. While many employees may never in fact study summary plan descriptions, they are likely to learn of the provision as explained in the description through conversations with fellow employees and their employer”).
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door to relief for a faulty SPD in the manner that El Paso suggests. See Defs. Br. at 3-4. Chiles says that “to secure relief” the plaintiff “must show some significant reliance upon, or possible prejudice flowing from, the faulty plan description.” 95 F.3d at 1519. In Burke v. Kodak, supra, 336 F.3d at 112-13, the Second Circuit rejected detrimental reliance as the only way to obtain relief for a faulty plan description and held that participants are entitled to relief if they can show “likely prejudice.” “Likely prejudice” is established where participants are “deprived of the opportunity to take timely action in response to the purported amendment,” including “seeking injunctive relief, altering their retirement investment strategies, or perhaps considering other employment.” Frommert v. Conkright, 433 F.3d 254, 266 (2d Cir. 2006). Plaintiffs submit that they will be able to establish likely prejudice as outlined in Burke and Frommert. Had El Paso told the three named Plaintiffs about the extent of the benefit reductions, they could have joined with others to complain about the changes, sought additional benefits or compensation to make up for the losses, increased their savings or 401(k) contributions, looked at other employment opportunities, or filed this action sooner. Chiles’ reference to “possible prejudice” should be no more stringent than “likely prejudice” since in ordinary usage “possible prejudice” is broader and more encompassing than “likely prejudice.”
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B. El Paso’s SPDs and Other Written Communications Never Disclosed Significant Benefit Reductions Like the 10 or More Year Periods of Wear-Away and 89% Reductions in Future Benefits that Plaintiffs’ Experts Have Found.
Plaintiffs’ actuarial and statistical experts have found that El Paso’s cash balance conversion was designed to produce wear-away periods lasting 10 or more years and that future benefits were reduced by 89% on average after ten years for employees in the old El Paso/EPNG group. Ex. 8 at 8-17 and Ex. 9 at 5-14. In response to those reports, Defendants’ actuarial expert, Mr. Altman, concedes “there is no dispute” that “the rate of benefit accrual under the cash balance plan is significantly lower than under the prior plan formula.” Ex. 10 at 4-5.
Despite the 10-year periods of wear-away and 89% reductions in future benefits, Plaintiffs’ communications expert, Professor Stratman, determined that “participants would find nothing within [El Paso’s SPD] to suggest that their benefits under the new CBP Select plan would be significantly less than those in their existing final average pay plans.” Ex. 6 at 15. There were “no statements, illustrative examples, or warnings” of wear-away periods or benefit reductions. Id. at 15. Instead, Professor Stratman found “misleading” assurances that “The value of your El Paso Cash Account Benefit will continue to grow as long as you maintain a balance in your CBP Select Account” and “Your account increases in
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value over time.” Id. at 13 and 15. El Paso has prepared no expert report and offered no other evidence to
counter Professor Stratman’s report. Instead, El Paso’s counsel have said that they intend to lodge a Daubert challenge to Professor Stratman’s report. Tellingly, no Daubert challenge accompanies El Paso’s motion and El Paso’s memorandum nowhere defends the adequacy of the disclosures in the SPD. Instead, El Paso asserts that even if the SPDs do not disclose lower rates of accrual, the reductions were purportedly disclosed in other documents–namely, a January 11, 1996 Employee Update newsletter, a December 2001 “Notice of Plan Changes,” and an individual Compensation Statement issued in 1999. Defs. Br. at 2 and 4.
Plaintiffs have already made the point that the one-page “overview” on cash balance in the 45-page Employee Update specifically says that the“[d]etails of this new type of plan have not been finalized.” See Pls. 5/12/2008 Reply in Support of Mot. to Reconsider (dkt. #231) at 7. At the time this Update was distributed, El Paso’s cash balance plan did not include the 5-year extension of the prior highestaverage-pay formula. After the Plan was finalized, a “Program Highlights” brochure was distributed in October 1996. The Program Highlights did not contain the “lower rate” statement contained in the January 1996 Update. Ex. 11. Thus, even a participant who noticed the language in the January 1996 Update would
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reasonably assume that El Paso had modified the final version of the Plan so there were no lower rates of accrual.
El Paso’s 2001 Notice likewise fails to adequately disclose any reductions. Professor Stratman has opined on how that one-page notice is basically incomprehensible to the average plan participant because of its use of legalistic language. Ex. 6 at 17-20. Professor Stratman found that the phrase “accruals under the Plan may effectively cease,” in the fifth paragraph of the notice, was ambiguous and would likely cause readers to believe that statement “simply refers to the cessation of their old plan benefits,” rather than the pay and interest credits provided by the cash balance plan. Id. at 18-19.
Professor Stratman’s report cites the deposition testimony of the three named Plaintiffs to show that they did not understand the notice’s legal jargon. Id. at 19-20. For example, when asked what the phrase “accruals under the plan may effectively cease,” means, Ms. Ballesteros responded, “Well, the phrase “. . . accruals under the plan” is a little confusing because they don’t specify which plan . . . I didn’t understand what they mean by accruals would cease.” Ex. 6 at 20.
Lastly, El Paso resorts to a bar graph in a 1999 individual Compensation Statement and contends that it provided notice of reduced rates of benefit accrual. Defs. Br. at 2-3, citing Defs. Ex. I at P 47. The bar graph contains no text or other
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description about benefit reductions or wear-aways. C. The Department of Labor’s Regulations Require Summary Plan Descriptions to Tell Plan Participants that the Benefits They Reasonably Expect May Be Reduced or Lost. In the March 19, 2008 ruling on the Section 204(h) claim (Claim IV), this
Court recognized that the SPD regulations appear to require disclosure of “reductions.” Slip Op. at 14. The Court ruled that “The regulations for this section appear to imply that such information might need to be disclosed as they provide that “[a]ny description of exception, limitations, reductions, and other restrictions of plan benefits shall not be minimized, rendered obscure, or otherwise made to appear unimportant.” Id.
El Paso’s brief disregards the Court’s ruling by suggesting that “the SPD statute ... only requires disclosures concerning how a plan operates.” Defs. Br. at 5. El Paso goes on to narrow the disclosure requirements by contending that the “losses” or “reductions” in benefits to which the regulations refer are limited to losses or reductions “of existing benefits” and not losses or reductions in “additional” or “future” benefits. Defs. Br. at 6.
El Paso’s distinction disregards not only this Court’s March 19th ruling but also the Department of Labor’s regulations which refer to the denial, loss or reduction “of any benefits that a participant or beneficiary might otherwise
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reasonably expect the plan to provide on the basis of the description of benefits” required by the regulations. 29 C.F.R. 2520.102-3(l). The Department of Labor, which is entitled to deference on such issues, has explained that the SPD regulations “require a reasonably comprehensive and clear description of the provisions of a cash balance plan and how a prior conversion may have affected benefits that classes of participants might have reasonably expected the plan to provide.” 65 Fed. Reg. 70226, 70227 (Nov. 21, 2000).
El Paso does admit that Amara v. CIGNA, 534 F.Supp.2d 288 (D.Conn. 2008), cannot be squared with its position. Defs. Br. at 9. Amara held that CIGNA’s SPD was required to disclose the “phenomenon of wear away” to plan participants. Id. at 347-51. The Court rejected CIGNA’s argument that informing participants “that they might receive their protected Minimum Benefit if it was higher than their cash balance benefit” was an adequate disclosure, finding that “Nowhere in any of the notices is the phenomenon of wear away, or any substantive equivalent, discussed or described.” Id. at 349-50. “Treasury regulations require that any description of exceptions, limitations, reductions, and other restrictions of plan benefits shall not be minimized, rendered obscure or otherwise made to appear unimportant...By ignoring the risk of wear away, CIGNA did exactly that.” Id. at 348.
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As described above, El Paso’s experts do not dispute the findings by Plaintiffs’ experts of 10-or-more-year wear-away periods and 89% reductions in future benefits over the next 10 years. It is incredible that El Paso is willing to claim that benefit reductions on this order of magnitude do not qualify as “reductions” or “losses” of benefits that need to be disclosed to employees.
D. Chiles Does Not Require a Showing of “Extraordinary Circumstances”; Even If It Did, Additional Discovery May Confirm that El Paso Actively Concealed the Draconian Benefit Reductions Effected by the Cash Balance Conversion.
El Paso acts as though there is an extraordinary circumstances requirement in the Tenth Circuit beyond the “some significant reliance” or “possible prejudice” standard in Chiles. See Defs. Br. at 10. Simply put, there is no such requirement. In Hammond v. Eighth District Electrical Benefit Fund, 36 Fed. Appx. 369, 373 (10th Cir. 2002), the Tenth Circuit found that “Section 1022(b) requires that certain information be included in the summary plan description, including circumstances which may result in disqualification, ineligibility or denial or loss of benefits.” Because the Fund’s SPD was ambiguous with respect to the applicable limitations period, the court held that it “failed in its duty to provide this critical information to participants in a clearly understandable manner.” Id. at 374.
El Paso looks to the Third Circuit for supporting authority, but it is clear
18

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that in the Third Circuit an “extraordinary circumstances” requirement does not apply to a breach of fiduciary duty claim involving disclosures. See Jordan v. Federal Express, 116 F.3d 1005, 1012 (3d Cir. 1997) (“we have not employed the [extraordinary circumstances] test for breach of fiduciary duty claims”). For a pure SPD claim, the Third Circuit seems to be of two minds. Burstein v. Allegheny, 334 F.3d 365, 377-83 (3d Cir. 2003), holds that “extraordinary circumstances” is not required and calls the part of Gridley v. Cleveland Pneumatic Co., 924 F.2d 1310, 1319 (3d. Cir. 1991), which suggests otherwise “dictum.” Register v. PNC Fin. Servs., 477 F.3d 56, 74 (3d Cir. 2007), holds that it is an element, citing Jordan. But, as indicated, Jordan holds that extraordinary circumstances is not an element of a breach of fiduciary duty claim, although it is an element of a reporting and disclosure claim. 116 F.3d at 1011-12. Here, Claim V alleges that the faulty disclosures are both a violation of the disclosure rules and a breach of fiduciary duty.
Plaintiffs expect that additional discovery will show that El Paso actively concealed the draconian reductions which it was putting in place so as to satisfy even an extraordinary circumstances requirement. Plaintiffs have already uncovered indications of such concealment. For example, the presentation by Mercer to El Paso stated that cash balance plans are “popular with employers”
19

Case 1:04-cv-02686-WDM-CBS Document 237 Filed 06/06/2008 USDC Colorado Page 24 of 26

because of “Masking a cut in pension plan benefits.” Ex. 5 (EPTO 3505). In line

with this El Paso made no disclosures even after an August 14, 1996 presentation

by Mercer told El Paso that the “Impact on Employees” would be a “36% average

reduction in pension benefits at age 60.” Ex. 7 (EPTO 3669). Professor

Stratman’s report found that El Paso’s communications only gave examples of

employees who were “winners” under the new formula, Ex. 6 at 7, even though

Plaintiffs’ experts found that the benefit reductions were even worse than the 36%

average reductions that Mercer described. As El Paso indirectly recognizes, the

Amara plaintiffs found proof in emails and other communications obtained in

discovery that CIGNA’s concealment of benefit reductions was deliberate. See

Defs. Br. at 9-10 and 534 F.Supp.2d at 343.

Conclusion

For the foregoing reasons, Plaintiffs request that the Court order a

continuance until it rules on the other pending motions and discovery is complete

or deny El Paso’s motion for summary judgment.

DATED: June 6, 2008

Respectfully submitted,

s/ Stephen R. Bruce Stephen R. Bruce Allison C. Pienta 805 15th St., NW, Suite 210

20

Case 1:04-cv-02686-WDM-CBS Document 237 Filed 06/06/2008 USDC Colorado Page 25 of 26
Washington, D.C. 20005 202 / 371-8013 stephen.bruce@prodigy.net
s/ Barry D. Roseman Barry D. Roseman McNamara, Roseman, Martinez & Kazmierski, LLP 1640 East 18th Avenue Denver, CO 80218-1202 303 / 333-8700 bdr@18thavelaw.com
Attorneys for Plaintiffs
Exhibits
1. Excerpts from deposition of Alice Ballesteros taken on Feb. 25, 2008 2. Excerpts from deposition of Gary Muckelroy taken on January 30, 2008 3. Newsletter about putting Summary Plan Description online through Intranet 4. Excerpts from deposition of Wayne Tomlinson taken on January 29, 2008 5. November 1995 Mercer presentation on cash balance plans “masking”
reductions 6. Expert report of Plaintiffs’ communications expert, Professor James
Stratman 7. August 1996 Mercer presentation showing 36% reductions 8. Expert report of Plaintiffs’ actuarial expert, Claude Poulin 9. Expert report of Plaintiffs’ statistical expert, Robert Bardwell 10. Expert report of Defendants’ expert, Ian Altman 11. October 1996 Program Highlights brochure 12. Rule 56(f) Affidavit of Stephen R. Bruce
21

Case 1:04-cv-02686-WDM-CBS Document 237 Filed 06/06/2008 USDC Colorado Page 26 of 26

Certificate of Service The undersigned hereby certifies that, on this 6th day of June 2008, a true

and correct copy of Plaintiffs’ Memorandum in Support of a Continuance Under

Rule 56(f) and in Opposition to Defendants’ Motion for Partial Summary

Judgment on Claim V, with Exhibits 1 through 12, and this Certificate of Service

was served through the CM/ECF electronic filing system on the following

attorneys for the Defendants:
Darren E. Nadel Littler Mendelson, P.C. One Tabor Center 1200 17th Street, Suite 1000 Denver, CO 80202

Raymond W. Martin Wheeler Trigg Kennedy, LLP 1801 California Street, Suite 3600 Denver, Colorado 80202

Christopher J. Rillo, Esq. Groom Law Group 1701 Pennsylvania Ave., N.W. Washington, D.C. 20006-5893

s/ Stephen R. Bruce

 
 Case 1:04-cv-02686-WDM-CBS Document 314 Filed 02/06/2009 USDC Colorado Page 1 of 12
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 04-cv-02686-WDM-CBS
WAYNE TOMLINSON, ALICE BALLESTEROS, GARY MUCKELROY, individually and on behalf of all others similarly situated,
Plaintiffs, v.
EL PASO CORPORATION, and EL PASO PENSION PLAN,
Defendants. __________________________________________________________________
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION TO ALTER OR AMEND JUDGMENT ENTERED ON JANUARY 23, 2009
__________________________________________________________________
Stephen R. Bruce Allison C. Pienta 805 15th St., NW, Suite 210 Washington, D.C. 20005 202 / 371-8013 stephen.bruce@prodigy.net
Barry D. Roseman McNamara, Roseman, Martinez & Kazmierski, LLP 1640 East 18th Avenue Denver, CO 80218-1202 303 / 333-8700 bdr@18thavelaw.com
Attorneys for Plaintiffs

Case 1:04-cv-02686-WDM-CBS Document 314 Filed 02/06/2009 USDC Colorado Page 2 of 12
Memorandum in Support of Motion to Alter or Amend Judgment Federal Rule of Civil Procedure 59(e) provides that this Court has the authority to alter or amend the judgment entered on January 23, 2009 based on a motion filed no later than 10 days after entry of judgment. As this Court’s decision dated January 21, 2009 states, a Rule 59(e) motion should be granted to address “an intervening change in the controlling law.” Slip Op. at 4 (citing Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). On January 29, 2009, the President signed the Lilly Ledbetter Fair Pay Act of 2009 into law, P.L. 111-2.1 Plaintiffs respectfully submit that the Ledbetter Act is “an intervening change in the controlling law.”2 The Supreme Court has held that a court should “apply the law in effect at the time it renders its decision” even when a case is “pending on appeal.” Landgraf v. USI Film Products, 511 U.S. 244, 269-75 (1994).3 The Supreme
1 For the Court’s convenience, P.L. 111-2 is attached at the end of this Memorandum.
2 This Motion and Memorandum are limited to the intervening change in the law effected by the Ledbetter Act. Although Plaintiffs believe the January 21, 2009 Decision is incorrect in other respects, this Motion is limited to that Act. Plaintiffs are, of course, not waiving their right to appeal on other grounds.
3 The exception is when the intervening change in the law attaches “new legal consequences” to conduct, such as a new provision for exemplary or punitive damages. Landgraf, 511 U.S. at 269-70.
1

Case 1:04-cv-02686-WDM-CBS Document 314 Filed 02/06/2009 USDC Colorado Page 3 of 12
Court has “regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed.” Id. at 274.
The Ledbetter Act was based on Congress’ determination, expressed directly in the legislation, that the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), “significantly impairs statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades.” Congress determined that “[t]he Ledbetter decision undermines those statutory protections by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.”
P.L. 111-2 accordingly amends Title VII of Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (the ADEA), the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990 (ADA) to provide that:
“an unlawful [employment] practice occurs, with respect to discrimination in compensation in violation of this Act, when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other
2

Case 1:04-cv-02686-WDM-CBS Document 314 Filed 02/06/2009 USDC Colorado Page 4 of 12
compensation is paid, resulting in whole or in part from such a decision or other practice.” Emph. added. With respect to the ADEA, the Act thus amends Section 7(d), 29 U.S.C.§626(d), to specifically set forth when an “unlawful practice” occurs for purposes of the charge filing requirements. The Act expressly provides that it “take[s] effect as if enacted on May 28, 2007” (the day before the Supreme Court’s Ledbetter decision) and that it shall “apply to all claims of discrimination in compensation ... that are pending on or after that date.”4 This Court’s January 21, 2009 decision and January 23, 2009 judgment dismissed the Plaintiffs’ ADEA charge on the basis of the Supreme Court’s Ledbetter decision. The Court’s decision states that “Because the plan is ageneutral, I conclude that the statute of limitations is governed by Ledbetter, not by Bazemore.” Slip Op. at 12. On this basis, the Court decided that Mr. Tomlinson’s charge of age discrimination was “time-barred.” Id. In Bazemore v. Friday, 478 U.S. 385, 395 (1986), the Supreme Court held that even though a racially discriminatory compensation structure was adopted before the effective date of Title VII, “[e]ach week’s paycheck that deliver[ed] less
4 In addition to the express inclusion of the term “benefits” in the Act, the ADEA specifically provides that “[t]he term ‘compensation, terms, conditions, or privileges of employment’ encompasses all employee benefits, including such benefits provided pursuant to a bona fide employee benefit plan.” 29 U.S.C. §630(l), as amended in 1990.
3

Case 1:04-cv-02686-WDM-CBS Document 314 Filed 02/06/2009 USDC Colorado Page 5 of 12
to a black than to a similarly situated white is a wrong actionable under Title VII.” The Tenth Circuit has consistently applied this principle in cases decided after Bazemore to claims of allegedly discriminatory practices under Title VII,5 the ADEA.6 and the Americans with Disabilities Act.7
As this Court observed, Slip Op. at 11, Ledbetter appeared to limit the holding in Bazemore to cases in which the allegedly discriminatory practice is not pursuant to a system that is “facially nondiscriminatory and neutrally applied.” Ledbetter, 127 S.Ct. at 2174. As the Tenth Circuit’s precedents show, this was a major shift in the Supreme Court’s construction of Bazemore.
One day before this Court’s judgment was entered, the United States Senate passed the Ledbetter Fair Pay Act as S. 181. The House of Representatives had already passed a bill, H.R. 11, with identical language on January 9, 2009. On January 27, 2009, the House re-enacted the same bill on a stand-alone basis and President Obama signed the legislation into law on January 29, 2009–less than 10
5 Brown v. Unified Sch. Dist. 501, 465 F.3d 1184, 1187 (10th Cir. 2006); Goodwin v. Gen. Motors Corp., 275 F.3d 1005, 1010 (10th Cir. 2002).
6 Thiessen v. GE Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001), cert. denied, 536 U.S. 934 (2002); Gray v. Phillips Petroleum Co., 858 F.2d 610, 61415 (10th Cir. 1988); Furr v. AT&T Technologies, 824 F.2d 1537, 1543-44 (10th Cir. 1987).
7 Davidson v. America Online, Inc., 337 F.3d 1179, 1186 (10th Cir. 2003).
4

Case 1:04-cv-02686-WDM-CBS Document 314 Filed 02/06/2009 USDC Colorado Page 6 of 12
days after entry of the Court’s judgment. Based on “the intervening change in the controlling law” effected by the
Ledbetter Act, Plaintiffs respectfully ask this Court to alter or amend the January 23, 2009 judgment to reflect that the charge of age discrimination in this case was filed within 300 days of “when a person [was] affected by application of [the] discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation [were] paid, resulting in whole or in part from such decision or other practice.”
This Court’s earlier decision on Plaintiffs’ motion for conditional approval of an ADEA collective action held that “Plaintiffs’ Motion to Certify Class and Conditional Approval of ADEA Collective Action (doc no 107) is granted in part and denied in part without prejudice. Plaintiffs are entitled to conditional approval of their ADEA collective action upon my satisfaction that the claim is not barred by the statute of limitations” and “[o]n the condition that Plaintiffs submit a notice containing an amended class definition” which limits the class “to individuals whose benefits were subject to a wear away period.” 3/19/2008 Slip Op. (dkt.#213) at 15, 20. As this Court directed, Plaintiffs filed the amended ADEA collective action definition on March 28, 2008. Dkt. #217. The Court further held that “[i]n the event I determine that the charge was timely filed,...Plaintiffs may
5

Case 1:04-cv-02686-WDM-CBS Document 314 Filed 02/06/2009 USDC Colorado Page 7 of 12
resubmit the ADEA collective action notices and consent forms for my approval.” 3/19/2008 Slip Op. at 17. Consistent with this decision, Plaintiffs are resubmitting the ADEA collective action notice and consent form (with the amended collective action definition) for the Court’s approval so that the notice and opt-in process in this collective action can proceed. Conclusion
For the foregoing reasons, Plaintiffs respectfully ask this Court to alter or amend the judgment entered on January 23, 2009 to find that Mr. Tomlinson’s age discrimination charge was timely filed under the Age Discrimination in Employment Act, as amended by the Lilly Ledbetter Fair Pay Act of 2009, P.L. 111-2. Plaintiffs further request that the Court approve the ADEA collective action notice and consent form previously submitted in accordance with this Court’s March 19, 2008 decision. A proposed Order accompanies this Motion with the notice and consent form. DATED: February 6, 2009
Respectfully submitted, s/ Stephen R. Bruce Stephen R. Bruce Allison C. Pienta 805 15th St., NW, Suite 210 Washington, D.C. 20005 202 / 371-8013
6

Case 1:04-cv-02686-WDM-CBS Document 314 Filed 02/06/2009 USDC Colorado Page 8 of 12
stephen.bruce@prodigy.net s/ Barry D. Roseman Barry D. Roseman McNamara, Roseman, Martinez & Kazmierski, LLP 1640 East 18th Avenue Denver, CO 80218-1202 303 / 333-8700 bdr@18thavelaw.com Attorneys for Plaintiffs
7

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PL 111-2, 2009 S 181 PL 111-2, January 29, 2009, 123 Stat 5 (Cite as: 123 Stat 5)

Page 1

UNITED STATES PUBLIC LAWS 111th Congress - First Session Convening January 04, 2009
Copr. © 2009 Thomson Reuters. No Claim to Orig. U.S. Govt.Works
Additions and Deletions are not identified in this database. Vetoed provisions within tabular material are not displayed
PL 111-2 (S 181) January 29, 2009 LILLY LEDBETTER FAIR PAY ACT OF 2009
An Act To amend title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and to modify the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
<< 42 USCA § 2000a NOTE >>
SECTION 1. SHORT TITLE.
This Act may be cited as the "Lilly Ledbetter Fair Pay Act of 2009".
<< 42 USCA § 2000e-5 NOTE >>
SEC. 2. FINDINGS.
Congress finds the following:
(1) The Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), significantly impairs statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades. The Ledbetter decision undermines those statutory protections by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.
(2) The limitation imposed by the Court on the filing of discriminatory compensation claims ignores the reality of wage discrimination and is at odds with the robust application of the civil rights laws that Congress intended.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 1:04-cv-02686-WDM-CBS Document 314
PL 111-2, 2009 S 181 PL 111-2, January 29, 2009, 123 Stat 5 (Cite as: 123 Stat 5)

Filed 02/06/2009 USDC Colorado Page 10 of 12
Page 2

(3) With regard to any charge of discrimination under any law, nothing in this Act is intended to preclude or limit an aggrieved person's right to introduce evidence of an unlawful employment practice that has occurred outside the time for filing a charge of discrimination.
(4) Nothing in this Act is intended to change current law treatment of when pension distributions are considered paid.
<< 42 USCA § 2000e-5 >>
SEC. 3. DISCRIMINATION IN COMPENSATION BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN.
Section 706(e) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(e)) is amended by adding at the end the following:
"(3)(A) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or *6 when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
"(B) In addition to any relief authorized by section 1977A of the Revised Statutes (42 U.S.C. 1981a), liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.".
SEC. 4. DISCRIMINATION IN COMPENSATION BECAUSE OF AGE.
Section 7(d) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 626(d)) is amended--
(1) in the first sentence--
<< 29 USCA § 626 >>
(A) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively; and
<< 29 USCA § 626 >>
(B) by striking "(d)" and inserting "(d)(1)";
<< 29 USCA § 626 >>
(2) in the third sentence, by striking "Upon" and inserting the following:
"(2) Upon"; and

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Filed 02/06/2009 USDC Colorado Page 11 of 12
Page 3

<< 29 USCA § 626 >>
(3) by adding at the end the following:
"(3) For purposes of this section, an unlawful practice occurs, with respect to discrimination in compensation in violation of this Act, when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.".
SEC. 5. APPLICATION TO OTHER LAWS.
<< 42 USCA § 2000e-5 NOTE >>
(a) AMERICANS WITH DISABILITIES ACT OF 1990.--The amendments made by section 3 shall apply to claims of discrimination in compensation brought under title I and section 503 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq., 12203), pursuant to section 107(a) of such Act (42 U.S.C. 12117(a)), which adopts the powers, remedies, and procedures set forth in section 706 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5).
<< 42 USCA § 2000e-5 NOTE >>
(b) REHABILITATION ACT OF 1973.--The amendments made by section 3 shall apply to claims of discrimination in compensation brought under sections 501 and 504 of the Rehabilitation Act of 1973 (29 U.S.C. 791, 794), pursuant to--
(1) sections 501(g) and 504(d) of such Act (29 U.S.C. 791(g), 794(d)), respectively, which adopt the standards applied under title I of the Americans with Disabilities Act of 1990 for determining whether a violation has occurred in a complaint alleging employment discrimination; and
(2) paragraphs (1) and (2) of section 505(a) of such Act (29 U.S.C. 794a(a)) (as amended by subsection (c)).
(c) CONFORMING AMENDMENTS.--
(1) REHABILITATION ACT OF 1973.--Section 505(a) of the Rehabilitation Act of 1973 (29 U.S.C. 794a(a)) is amended--
*7
<< 29 USCA § 794a >>
(A) in paragraph (1), by inserting after "(42 U.S.C. 2000e-5 (f) through (k))" the following: "(and the application of section 706(e)(3) (42 U.S.C. 2000e-5(e)(3)) to claims of discrimination in compensation)"; and
<< 29 USCA § 794a >>
(B) in paragraph (2), by inserting after "1964" the following: "(42 U.S.C. 2000d et seq.) (and in subsection (e)(3) of section 706 of such Act (42 U.S.C. 2000e-5), applied to claims of discrimination in compensation)".

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 1:04-cv-02686-WDM-CBS Document 314
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Filed 02/06/2009 USDC Colorado Page 12 of 12
Page 4

<< 42 USCA § 2000e-16 >>
(2) CIVIL RIGHTS ACT OF 1964.--Section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16) is amended by adding at the end the following:
"(f) Section 706(e)(3) shall apply to complaints of discrimination in compensation under this section.".
<< 29 USCA § 633a >>
(3) AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967.--Section 15(f) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(f)) is amended by striking "of section" and inserting "of sections 7(d)(3) and".
<< 42 USCA § 2000e-5 NOTE >>
SEC. 6. EFFECTIVE DATE.
This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.), title I and section 503 of the Americans with Disabilities Act of 1990, and sections 501 and 504 of the Rehabilitation Act of 1973, that are pending on or after that date.
Approved January 29, 2009.
PL 111-2, 2009 S 181
END OF DOCUMENT

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 04-WDM-2686 (WDM/MEH)
WAYNE TOMLINSON, ALICE BALLESTEROS, GARY MUCKELROY, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
EL PASO CORPORATION, and EL PASO PENSION PLAN,
Defendants.
________________________________________________________________________
PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CLASS CERTIFICATION AND CONDITIONAL APPROVAL OF ADEA COLLECTIVE ACTION
________________________________________________________________________

Table of Contents
Introduction ........................................................................................................................ 1
I. Plaintiffs’ ERISA Claims Are Appropriate for Class Certification under Rule 23. 6
A. The Requirements of Rule 23(a) Are Satisfied. ......................................... 7
1. The Members of the Class Are So Numerous that Joinder is Impracticable. ................................................................................... 8
2. Plaintiffs’ Claims Present Common Questions of Law and Fact. .... 9
3. The Named Plaintiffs’ Claims Are Typical of the Class. ............... 12
4. Plaintiffs Will Fairly and Adequately Protect the Class’ Interests. 14
B. The Proposed Class Should Be Certified Under Rule 23(b)(2). ................ 17
C. Plaintiffs’ Counsel Should be Appointed as Class Counsel. ..................... 19
II. Conditional Certification of an ADEA Collective Action for the First and Third Claims for Relief Is Appropriate. ......................................................................... 20
A. Plaintiff Wayne Tomlinson Filed a Timely Charge of Age Discrimination with the EEOC in Accordance with ADEA Section 7(d). ......................... 21
B. Plaintiffs Have Demonstrated that the Putative Class Members Are “Similarly Situated” to Justify Conditional Certification of a Collective Action Under ADEA Section 7(b). ............................................................ 22
C. Plaintiffs Have Set Forth Substantial Allegations that El Paso’s Implementation of a Cash Balance Formula with Understated Opening Balances and a “Higher of” Transition Rule Is a “Decision, Policy, or Plan” that Discriminated Against Employees Based on Age. ............... 23
D. The Proposed ADEA Notice and Opt-In Consent Form Are “Accurate and Informative” and Therefore Proper. .......................................................... 27
Conclusion ....................................................................................................................... 29
i

TABLE OF AUTHORITIES FEDERAL CASES
Adamson v. Bowen, 855 F.2d 668 (10th Cir. 1988) ...................................... 6-7, 13 Adise v. Mather, 56 F.R.D. 492 (D.Colo. 1972) ..................................................... 6 Amara v. CIGNA Corp., 2002 WL 31993224 (D.Conn. 2002) ..................... passim Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) .................................... 14 Caranci v. Blue Cross & Blue Shield of Rhode Island, 194 F.R.D. 27
(D.R.I. 2000) ................................................................................................... 12 In re Citigroup Pension Plan ERISA Litig., 2006 WL 3770504
(S.D.N.Y. 2006) .................................................................................... 4, 10, 18 Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354
(D.Colo. 1999) ............................................................................................ 9, 19 Cook v. Rockwell International Corp., 181 F.R.D. 473 (D.Colo. 1998) .......... 9, 12 Cooper v. IBM Personal Pension Plan, C.A. 99-829 (S.D.Ill. Sept. 17,
2001) ................................................................................................ 4, 10, 13-15 Engers v. AT&T Inc., C.A. 98-3660 (D.N.J. Nov. 19, 2001) ...................... 4, 13, 18 Esplin v. Hirschi, 402 F.2d 94 (10th Cir. 1968) ..................................................... 7 Fallick v. Nationwide Mutual Insurance Co., 162 F.3d 410 (6th Cir. 1998) ....... 12 Forbush v. J.C. Penney Co. Inc., 994 F.2d 1101 (5th Cir. 1993) ......................... 11 Foster v. RuhrPumpen, Inc., 365 F.3d 1191 (10th Cir. 2004) .............................. 21 Geller v. Markham, 481 F. Supp. 835 (D.Conn. 1979), aff'd in part, rev'd
in part on other grounds, 635 F.2d 1027 (2d Cir. 1980), cert. denied, 451 U.S. 945 (1981) ............................................................................................... 28
ii

General Dynamics Land Systems v. Cline, 540 U.S. 581 (2004) ......................... 20 Gratz v. Bollinger, 539 U.S. 244 (2003) ................................................................ 6 Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) ......................................................... 6 Hirt v. Equitable Retirement Plan for Employees, 450 F. Supp. 2d 331
(S.D.N.Y. 2006) .............................................................................................. 18 Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165 (1989) ...................... 20, 27-28 Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270 (10th Cir. 1977) ........ 8 Joseph v. General Motors, 109 F.R.D. 635 (D. Colo. 1986) ................................. 7 Milonas v. Williams, 691 F.2d 931 (10th Cir. 1982); cert. denied, 460 U.S.
1069 (1983) ................................................................................................. 9, 13 Mueller v. CBS, Inc., 201 F.R.D. 425 (W.D.Pa. 2001) ........................................ 24 Pennington v. Western Atlas, 202 F.3d 902 (6th Cir. 2000) .................................... 5 In re Qwest Savings and Investment Plan ERISA Litig., 2004 U.S. Dist.
LEXIS 24693 (D.Colo. 2004) ........................................................................... 8 Richards v. FleetBoston Financial Corp., 427 F. Supp. 2d 150 (D.Conn. 2006) 25 Richards v. FleetBoston Financial Corp., 235 F.R.D. 165 (D.Conn. 2006) . passim Richards v. FleetBoston Financial Corp., 238 F.R.D. 345 (D.Conn. 2006) .......... 4 Rosen v. Reckitt & Colman, Inc., 1991 U.S. Dist. LEXIS 14663 (S.D.N.Y.
1991) ............................................................................................................... 28 Schwartz v. Celestial Seasonings, 178 F.R.D. 545 (D.Colo. 1998) 9, 11-12, 14, 17 Shook v. El Paso County, 386 F.3d 963 (10th Cir. 2004) ................................... 6-7 Sperling v. Hoffman-LaRoche, 118 F.R.D. 392 (D.N.J. 1988), aff’d in relevant
part, 862 F.2d 439 (3d Cir. 1988), aff'd and remanded by 493 U.S. 165 (1989) .................................................................................................. 22, 24, 27
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Sperling v. Hoffman-LaRoche, 24 F.3d 463 (3d Cir. 1994) ................................. 28 Steiner v. Ideal Basic Industries, Inc., 127 F.R.D. 192 (D.Colo. 1987) ............... 15 In re Telecom Group Inc Sec. Litig., 169 F.R.D. 142 (D.Colo. 1996) ................... 7 Thiessen v. General Electric Capital Corp., 267 F.3d 1095 (10th Cir. 2001) .. 22-24 Thiessen v. General Electric Capital Corp., 996 F. Supp. 1071
(D.Kan. 1998) ........................................................................................... 21-22 In re Universal Serv. Fund Telegraph Billing Practices Litigation, 219 F.R.D.
661 (D.Kan. 2004) ............................................................................................ 6 Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672 (D.Colo. 1997) ..... 23-24, 27-28 Vaszlavik v. Storage Tech. Corp., 183 F.R.D. 264 (D.Colo. 1998) ........... 8, 14, 18 In re Williams Companies ERISA Litig., 231 F.R.D. 416 (N.D. Okla. 2005) ...... 18 Wells v. Gannett Retirement Plan, C.A. 03-2671 (D.Colo. July 11, 2006) ..... 4, 18 Williams v. Sprint/United Management Co., 222 F.R.D. 483 (D.Kan. 2004) 21, 23
FEDERAL STATUTES, RULES, AND REGULATIONS ADEA §4(a) and (i), 29 U.S.C. §623(a) and (i) ............................................... 3, 20 ADEA §7(b), 29 U.S.C. §626(b) .................................................................. 1, 5, 22 ADEA §7(d), 29 U.S.C. §626(d) .......................................................................... 21 ERISA §102, 29 U.S.C. §1022 ......................................................................... 3, 10 ERISA §203, 29 U.S.C. §1053 ........................................................................... 3, 9 ERISA §204(b)(1)(B), 29 U.S.C. §1054(b)(1)(B) .............................................. 3, 9 ERISA §204(b)(1)(H), 29 U.S.C. §1054(b)(1)(H) ........................................... 3, 10
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ERISA §204(h), 29 U.S.C. §1054(h) ................................................................ 3, 10 FLSA §16(b), 29 U.S.C. §216(b) ...................................................................... 5, 22 Pension Protection Act, P.L. 109-280 ................................................................... 25 58 F.R. 46835 (Sept. 3, 1993) ............................................................................... 25 68 F.R. 17277 (April 9, 2003) .............................................................................. 25 Fed. R. Civ. P. 23(a) ...................................................................................... passim Fed. R. Civ. P. 23(b) .................................................................................... 6, 17-19 Fed. R. Civ. P. 23(g)(1) ........................................................................................ 19
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Introduction. Plaintiffs respectfully submit this memorandum in support of their motion to: (1) certify an ERISA class action under Fed. R. Civ. P. 23, and (2) conditionally approve an ADEA collective action pursuant to 29 U.S.C. §626(b). Before 1997, Defendant El Paso Corporation (“El Paso”) offered its employees a
traditional defined benefit pension formula that provided retirement benefits based on a formula that multiplied years of credited service by a percentage of the participant’s final average compensation. Complaint ¶¶15-16. Effective January 1, 1997, El Paso adopted a different kind of pension formula called a “cash balance” formula. Under the cash balance formula, which El Paso named “CBP Select,” a participant’s accrued benefit under the old formula was converted to a lump sum amount as of December 31, 1996. El Paso called that amount the participant’s initial “Cash Balance Account.” ¶¶17-18. Each quarter thereafter, hypothetical “pay” and “interest” credits are added to the account. ¶¶23-24.
During a 5-year “transition period” from January 1, 1997 to December 31, 2001, participants continued to accrue benefits under both the old formula and the new cash balance formula. The continuation of the old formula meant that most participants’ benefits continued to be determined by the old formula because it was so much better than the cash balance formula. On January 1, 2002, the transition period ended and benefits continued only under the cash balance formula. ¶20. Under El Paso’s Plan
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document, when a participant terminates employment, he or she will receive the “higher of”: (1) the benefits under the old formula, with no additional accruals after December 31, 2001, or (2) the value of the CBP Select account. ¶21.
Although El Paso told the employees that the initial Cash Balance Accounts represented the present value of their accumulated benefits under the old formula as of December 31, 1996, the accounts, in fact, did not include the full value of the accumulated benefits. Cplt. ¶19. Because of that shortfall, participants first have to “catch up” with the value of their prior benefits. Until their hypothetical Cash Balance Account catches up with and exceeds the value of the prior plan benefit, they do not realize a net accrual of additional benefits. ¶¶22, 25, 33-34. As a result, many participants did not earn any additional benefits for a period of years following the end of the transition period in 2001–even though they continued to work for El Paso. In the case of the named Plaintiffs, the period with no additional benefits has continued for the remainder of their careers with El Paso. Ex. 1 (comparing life annuity projections on last page of each print-out).
Furthermore, even when participants actually begin to earn additional benefits, their future rates of benefit accrual are significantly reduced. ¶¶25, 52. Despite the significant impact of the new formula, El Paso neglected to disclose any reductions in the rate of future benefit accruals to its employees, nor did it tell older employees that they would earn even less benefits. ¶¶26, 53, 56.
Plaintiffs’ Complaint sets forth five claims for relief. The first of those claims, for
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age discrimination in benefits in violation of Section 4(a) of the ADEA, is subject to the ADEA’s approval process which is modeled on the FLSA. The four other class claims or issues under ERISA are as follows:
Claim II: Whether the design of El Paso’s cash balance formula violates the nonforfeiture and anti-backloading rules in ERISA §203(a), 29 U.S.C. §1053(a), and ERISA §204(b)(1)(B), 29 U.S.C. §1054(b)(1)(B), because of the years where, in El Paso’s words, “accruals under the Plan may effectively cease.” Ex. 8.
Claim III: Whether the systematic age-based reductions and cessations in benefit accruals under El Paso’s cash balance formula violate the age discrimination provision in ERISA §204(b)(1)(H), 29 U.S.C. §1054(b)(1)(H).1
Claim IV: Whether El Paso provided a notice of significant reductions in the future rate of benefit accrual with sufficient information for the average plan participant to understand the effect of the changes as required by ERISA §204(h), 29 U.S.C.§1054(h).
Claim V: Whether El Paso adequately disclosed the material modifications to the El Paso Pension plan that could result in reduction, losses or forfeitures of benefits that a participant might otherwise reasonably expect as required by ERISA §102, 29 U.S.C. §1022.
Plaintiffs are moving for certification of these ERISA claims under Fed. R. Civ. P. 23. This action is suited for class treatment because El Paso has engaged in a common
1 As discussed below, the age-based reductions and cessations are also alleged to violate Section 4(i) of the ADEA, 29 U.S.C. §623(i). 29 U.S.C. §623(i) and 29 U.S.C. §1054(b)(1)(H) contain parallel prohibitions on age discrimination.
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course of conduct applicable to all plan participants. Although many cases involving cash balance conversions are still pending on the merits, courts have regularly certified cases with virtually identical claims under Rule 23. In Wells v. Gannett Retirement Plan, C.A. 03-2671 (D.Colo. July 11, 2006) (attached as Ex. 2), Judge Matsch certified a class for age discrimination claims arising from Gannett’s conversion to a pension equity formula, a type of “hybrid” pension plan. See also In re Citigroup Pension Plan ERISA Litigation, 2006 WL 3770504 (S.D.N.Y. 2006) (certifying claims that Citigroup’s cash balance plan violated ERISA’s backloading, age discrimination, and notice standards); Richards v. FleetBoston Financial Corp., 235 F.R.D. 165 and 238 F.R.D. 345 (D.Conn. 2006) (certifying claims in cash balance case for breach of fiduciary duty and for violations of ERISA’s age discrimination and disclosure rules); Cooper v. IBM Personal Pension Plan, C.A. 99-829 (S.D.Ill. Sept. 17, 2001) (attached as Ex. 3) (certifying three claims in cash balance case); Amara v. CIGNA Corp., 2002 WL 31993224 (D.Conn. 2002) (certifying age discrimination, forfeiture, backloading, and disclosure claims arising from CIGNA’s conversion to cash balance formula); Engers, et al. v. AT&T Inc., et al., C.A. 98-3660 (D.N.J. Nov. 19, 2001) (attached as Ex. 4) (certifying breach of fiduciary duty and disclosure claims in cash balance case).
Plaintiffs further request that this Court conditionally approve an ADEA “collective” or “representative” action for Claims I and III. In essence, Claim I alleges that El Paso violated Section 4(a) of the ADEA by reducing retirement benefits much more for older employees. As indicated above, Claim III is brought under both the ADEA
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and ERISA because the same rule appears in both statutes. ADEA claims are also different than ERISA claims not only in the procedure for proceeding on a collective basis, but also because ADEA claims are tried to a jury and double damages are awarded for willful violations. 29 U.S.C. §626(b) and (c).2
Actions brought under the ADEA are approved for treatment as collective actions under the procedure established by Section 16(b) of the Fair Labor Standards Act, 29 U.S.C. §216(b). Under the FLSA and the ADEA, notice is given to individuals who are affected by the unlawful practice. Those individuals must then decide whether to “opt-in” to the action. By contrast, inclusion in a class certified under FRCP 23 is either automatic or subject to an “opt-out” procedure. See Newberg on Class Actions (3d ed.), §4.01.
Plaintiffs’ request for certification of ERISA and ADEA classes is consistent with the case law. Courts have allowed certification of overlapping ERISA and ADEA classes and representation of both classes by the same named plaintiffs, finding that the ERISA and ADEA claims do not necessarily conflict. See, e.g., Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 681 (D. Colo. 1997) (“Plaintiffs’ ADEA and ERISA claims are complimentary and do not conflict so as to preclude the same named plaintiffs from representing each class); Krueger v. New York Tel. Co., 163 F.R.D. 433, 446 (S.D.N.Y. 1995) (certifying ERISA and ADEA classes with same named plaintiffs; finding each ERISA subclass “identical to and coextensive with the ADEA class”).
2 When both ERISA and ADEA claims are tried at the same time, the jury can sit as an advisory jury on the ERISA claims. See Pennington v. Western Atlas, 202 F.3d 902, 904 and 911 (6th Cir. 2000).
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I. Plaintiffs’ ERISA Claims Are Appropriate for Class Certification under Rule 23. “Class actions serve an important function in our system of civil justice.” Gulf Oil
Co. v. Bernard, 452 U.S. 89, 99 (1981). “[T]he class action device save[s] the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion.” Gratz v. Bollinger, 539 U.S. 244, 268 n. 17 (2003). Accordingly, Fed. Rule Civ. P. 23 is given a liberal construction. Adise v. Mather, 56 F.R.D. 492, 496 (D.Colo. 1972).
Under Rule 23(a), a class may be certified when four requirements are met: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the class; and (4) the representative parties adequately will protect the interests of the class. F.R.C.P. 23(a). These requirements are referred to as numerosity, commonality, typicality, and adequacy of representation. The court must also determine whether the action falls under one of the subcategories of Rule 23(b). Shook v. El Paso County, 386 F.3d 963, 971 (10th Cir. 2004); Adamson v. Bowen, 855 F.2d 668, 675n.10 (10th Cir. 1988). In a class action certified under Rules 23(b)(1) or (b)(2), inclusion in the class is automatic, although a right to “opt-out” may be provided in certain circumstances. See, e.g., In re Universal Serv. Fund Tel. Billing Practices Litig., 219 F.R.D. 661, 681 (D.Kan. 2004). Actions certified under Rule 23(b)(3) are subject to an “opt-out” procedure.
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In deciding to certify a class, the allegations of the plaintiffs’ complaint are accepted as true. Shook, 386 F.3d at 968; In re Telecom Group Inc Sec. Litig., 169 F.R.D. 142, 145 (D.Colo. 1996). Although the Court may be required to analyze the substantive claims of the parties to determine whether the requirements of Rule 23 have been met, “the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Shook, 386 F.3d at 971 (quoting Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir. 1982)); Adamson, 855 F.2d at 676 (“district court should avoid focusing on the merits underlying the class claim”). Because a class certification order is always subject to alteration before a final judgment, “the court should err in favor of, and not against, the maintenance of the class action.” Joseph v. General Motors, 109 F.R.D. 635, 638 (D. Colo. 1986) (citing Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir. 1968)).
A. The Requirements of Rule 23(a) Are Satisfied. Plaintiffs request that this Court certify a class under Rule 23(c)(1)(B) consisting of any and all person who: A. Are former or current El Paso employees, B. Participated in the El Paso Pension Plan on or after the January 1, 2002 date
on which the Pension Plan was fully converted to a cash balance design, and C. Are over age 40, or will be over age 40 as of the date of the judgment. See Cplt. ¶10.
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1. The Members of the Class Are So Numerous that Joinder is Impracticable.
To satisfy the numerosity requirement, the Plaintiffs must show that the proposed class “is so numerous that joinder of all numbers is impractical.” F.R.C.P. 23(a)(1). There is “no minimum numerical threshold which must be exceeded to satisfy this requirement.” In re Qwest Savings and Investment Plan ERISA Litigation, 2004 U.S. Dist. LEXIS 24693 *11 (D.Colo. 2004). Instead, “the nature of the particular case, and the nature of the proposed class, are key considerations in determining whether joinder of all parties is not practical.” Id. at *11. See also Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 273 (10th Cir. 1977) (“impracticability does not mean that joinder must have been shown to have been impossible, but only that it would have been difficult or manifestly inconvenient”).
There are no reported cases where it has been considered practicable to join a class of over 1,000 persons. See, e.g., Vaszlavik v. Storage Technology Corp., 183 F.R.D. 264, 270 (D.Colo. 1998) (“joinder of 1,266 plaintiffs is impracticable”). Indeed, classes of less than 50 persons are often certified. See, e.g., Horn, 555 F.2d at 273 (class of 46 plaintiffs was large enough to warrant class certification).
It is undisputed here that Plaintiffs’ proposed class is well in excess of 1,000 persons. In addition, the proposed class is geographically dispersed so as to render joinder of all parties impracticable. El Paso Corporation is the largest pipeline company and the leading provider of natural gas interstate transportation services in North
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America. The official “Form 5500" filed on behalf of the El Paso Pension Plan for the 2001 plan year shows that there were over 10,500 Plan participants at the end of that year. Ex. 5 (EPTO 9317). El Paso has facilities with Plan participants located in numerous states, making their joinder in any one proceeding highly impracticable.
2. Plaintiffs’ Claims Present Common Questions of Law and Fact. The commonality requirement of Rule 23(a)(2) is easily met here. Rule 23(a)(2) requires “questions of law or fact common to the class.” “The claims of the class members need not be identical for there to be commonality; either common questions of law or fact will suffice.” Schwartz v. Celestial Seasonings, 178 F.R.D. 545, 551 (D.Colo. 1998) (citing Milonas v. Williams, 691 F.2d 931, 938 (10th Cir. 1982)); Colorado CrossDisability Coalition v. Taco Bell Corp., 184 F.R.D. 354, 359 (D.Colo. 1999) (“Not every issue must be common to the class so long as the claims of the plaintiffs and other class members are based on the same legal or remedial theory”). Even if “some of the facts underlying each Plaintiff’s claims may vary,” commonality exists where “the claims arise from the same set of broad circumstances.” Cook v. Rockwell International Corp., 181 F.R.D. 473, 480 (D.Colo. 1998). In this case, the Plaintiffs allege statutory violations that are common to all members of the class. Claim II alleges that El Paso’s pension plan design makes payment of annual cash balance benefits conditional on participants foregoing receipt of their previously-earned benefits, in violation of ERISA §§ 203(a) and 204(b)(1)(B). Cplt.¶¶4145. Claim III alleges that the rate of an employee’s benefit accrual is reduced under the
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cash balance formula on account of the participants’ age in violation of ERISA §204(b)(1)(H). Id. at ¶¶46-50. Claim IV alleges that El Paso failed to disclose the benefit reductions to participants understandably in advance of their effectiveness as required by ERISA §204(h). Cplt.¶¶51-54. Claim V alleges that El Paso failed to distribute an updated Summary Plan Description, or Summary of Material Modification, to participants to explain the new circumstances that can result in reductions, denial, loss, or forfeiture of benefits that participants might otherwise reasonably expect, as required by ERISA §102. ¶¶55-57.
In Richards v. FleetBoston Financial Corp., supra, 235 F.R.D. at 172, a cash balance case addressing similar claims, the court found “common questions of law” where the plaintiff’s “claims allege that the terms of the plan, in which all class members participate, violate ERISA.” See also Amara v. CIGNA Corp., 2002 WL 31993224, *3 (plaintiffs’ age discrimination and disclosure claims were common legal questions “generally applicable to all members of the class”); Cooper v. IBM, supra, Ex. 3 at 6 (“common nucleus of operative fact” was “whether Defendants’ pension plan comports with the requirements of ERISA”).
Whether disclosures are misleading or inadequate presents legal issues common to the class. See Amara, 2002 WL 31993224, at *3 n.4 (“the threshold inquiry on this claim, whether the SPD (Summary Plan Description) was misleading, is a legal question common to each class member”); In re Citigroup, 2006 WL 3770504 at *4 (“Questions of law common to the potential class include...whether Plan participants received adequate
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notice of the 2000 and 2002 [Cash Balance Amendments]”); Richards, 235 F.R.D. at 172 (plaintiffs’ 204(h) and SPD disclosure claims did not require “individualized assessments” and therefore did not preclude commonality); see also Schwartz, 178 F.R.D. at 552 (misrepresentation claims “involve a common scheme affecting the entire class”).
The only discernable difference between members of the proposed class is based on when the cash balance formula took effect. For employees of the El Paso Energy Corp., the cash balance formula took effect after a 5-year transition from January 1, 1997 to December 31, 2001, during which the old formula continued side-by-side with the cash balance formula. El Paso subsequently acquired the Sonat Inc. in 1999 and the Coastal Corp. in 2001. The former Sonat employees began participation in the El Paso Pension Plan on January 1, 2000, with a corresponding 5-year “transition period” during which their old benefit formula continued to apply from January 1, 2000 until December 31, 2004. The transition period for Coastal employees occurred from March 31, 2001 until March 31, 2006. Except for the differences in these dates, the rules for transitioning each group into the El Paso cash balance formula were virtually identical.3
Where the legal issues are the same, differing factual issues like these will not defeat class certification. In Forbush v. J.C. Penney Co. Inc., 994 F.2d 1101, 1106 (5th Cir. 1993), a class covering four different retirement plans was certified where the common issue of J.C. Penney’s alleged overestimation of Social Security benefits was
3 See Ex. 6 at EPTO 953 and 959 (excerpt from “Cash Balance Plan (CBP Select) Program Highlights for Sonat Employees”) and Ex. 7 at EPTO 878 and 885 (excerpt from “CBP Select Program Highlights for former Coastal Corporation Employees”).
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sufficient to meet the commonality requirement. Because the common issue was whether the overestimation of benefits violated ERISA’s nonforfeiture provisions, “the necessity for even somewhat individual calculations does not supply a basis for concluding that Forbush has not met the commonality requirement.” 4
3. The Named Plaintiffs’ Claims Are Typical of the Class. The typicality requirement in Rule 23(a)(3) is also satisfied because the claims of the named Plaintiffs are based on the same legal theories and course of conduct as the claims of other class members. The named Plaintiffs were all participants in El Paso’s Plan both prior to and after the December 31, 2001 date when the transition period ended and El Paso’s cash balance formula took full effect. Cplt. ¶1. Of course, no two class members are identical. But “[s]o long as there is a nexus between the class representatives’ claims or defenses and the common questions of fact or law which unite the class,” the typicality requirement is met. Schwartz, 178 F.R.D. at 551. “[T]he threshold for typicality is low and the claims asserted by the class representative need only be typical of, not identical to, those of other class members.” Cook, 181 F.R.D. at 481. Any “differing fact situations of class members” will not “defeat typicality under
4 See also Fallick v. Nationwide Mutual Insurance Company, 162 F.3d 410, 422-23 (6th Cir. 1998) (plaintiff could pursue class action claiming improper denial of reimbursement for health care benefits on behalf of beneficiaries of “numerous” ERISA-regulated health insurance plans administered by defendant); Caranci v. Blue Cross & Blue Shield of Rhode Island, 194 F.R.D. 27, 39 (D.R.I. 2000) (certifying class of individuals participating in three different ERISA plans administered by defendant).
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Rule 23(a)(3) so long as the claims of the class representative and class members are based on the same legal or remedial theory.” Adamson, 855 F.2d at 676; accord Milonas v. Williams, 691 F.2d 931, 938 (10th Cir. 1982), cert. denied, 460 U.S. 1069 (1983) (“Factual differences in the claims of the class members should not result in a denial of class certification where common questions of law exist”); Amara, 2002 WL 31993224, *3 (fact that plaintiff left CIGNA’s employment and then returned “does not render her claim fundamentally different from those of the other class members”); Engers v. AT&T Inc., supra, Ex. 4 at 10 (typicality satisfied where “Plaintiffs’ claims and the putative class members’ claims all arise from the Defendants’ alleged violations of ERISA”).
Likewise, “[d]ifferences in the degree of harm suffered, or even in the ability to prove damages, do not vitiate the typicality of a representative’s claims.” Richards, 235 F.R.D. at 173. In Richards, the court found that “each class member’s claim arises from the same course of events and that each makes similar legal arguments to prove the defendants’ liability.” Id. See also Cooper, supra, Ex. 3 at 7 (typicality met where “[a]ll members of the class have a common interest in maximizing their benefits under the Plan by compelling Defendants to comply with the law”).
In this instance, the design of El Paso’s cash balance formula and El Paso’s failure to adequately disclose its effects gives rise to the named Plaintiffs’ claims and to the claims of the class. The named Plaintiffs do not assert claims that are any different from those of the members of the proposed Class.
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4. Plaintiffs Will Fairly and Adequately Protect the Class’ Interests.
Rule 23(a)(4) requires that the proposed class representatives fairly and adequately protect the interests of the class they wish to represent. “This requirement dovetails with the last in that typicality ensures that the class representatives’ claims resemble the class claims to an extent that adequate representation can be expected.” Vaszlavik, supra, 183 F.R.D. at 271. The class representatives must (1) have common interests with the class members and (2) the class representatives must vigorously prosecute the interests of the class through qualified counsel. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625 (1997); Schwartz, supra, 178 F.R.D. at 552. A presumption of adequate representation exists, and any doubt regarding whether this requirement is fulfilled “should be resolved in favor of the upholding the class, subject to later possible reconsideration.” Schwartz, 178 F.R.D. at 552.
No conflicts exist between the interests of the named Plaintiffs and the interests of putative class members. As described above, the named Plaintiffs share the class’ interest in ensuring that they earn retirement benefits in compliance with ERISA. See Richards, 235 F.R.D. at 170 (class representative’s claims “allege violations of statutory ERISA rights held by all of the putative class members” and “are based solely on plan terms and plan documents applicable to all class members”).
Courts have, moreover, “routinely rejected arguments that differing remedial interests within a class defeat class certification.” Cooper, supra, Ex. 3 at 8. The
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Richards, Amara, and Cooper courts held that whether some potential class members might benefit by remaining under the present cash balance formula does not create any conflict with the interests of the class representatives. Amara, 2002 U.S. Dist. LEXIS at *6-7 (“this problem can be addressed when the court determines what remedy should be provided if plaintiff prevails”); Richards, 235 F.R.D. at 171 (even if, as defendants alleged, “some class members would prefer to receive the greater benefits afforded to them by the Amended Plan, with its alleged violations of ERISA,” “does not mean that the court should exclude those individuals from a class that is created to vindicate their ERISA-created rights”).
“The adequacy requirement of Rule 23(a)(4) also requires th[e] court to determine whether plaintiffs’ attorneys are qualified, experienced and able to conduct the proposed litigation.” Steiner v. Ideal Basic Industries, Inc., 127 F.R.D. 192, 194 (D.Colo. 1987). Plaintiffs are represented by lead counsel Stephen Bruce of Washington, D.C., and cocounsel Barry D. Roseman of Denver, Colorado. Plaintiffs’ counsel have substantial experience in representing plaintiffs on both a class-wide and individual level in employment matters, as well as cases under ERISA.
Mr. Bruce has extensive experience handling similar cash balance conversion cases and has substantial knowledge of the applicable law. He represents the plaintiffs in two certified cash balance class actions, Amara, et al. v. CIGNA Corp., et al., C.A. 012361 (D.Conn.) and Engers, et al. v. AT&T Inc., et al., C.A. 98-3660 (D.N.J.), and in a proposed cash balance class action, Jensen v. Solvay Chemicals, Inc., et al., C.A. 06-273
15

(D.Wyo.). Mr. Bruce has served as lead counsel in other nationwide class actions to recover lost pension benefits, including Kifafi v. Hilton Hotels Retirement Plan, C.A. 981517 (D.D.C.), a nationwide class action on the “backloading” of pension benefit accruals, Page/Collins v. PBGC, C.A. 88-340 and 89-2997 (D.D.C.), and Forbush v. J.C. Penney Co. Pension Plan, C.A. 92-1131 (5th Cir.). The Page/Collins class action recovered over $1 billion in retirement benefits for over 35,000 individuals. Mr. Bruce is the author of Pension Claims: Rights and Obligations (BNA Books 1st ed. 1988; 2nd ed. 1993), a treatise about benefit law under ERISA that the Supreme Court and many apeals courts have cited.
Co-counsel Barry Roseman is a member of the law firm of Roseman & Kazmierski, LLC. Mr. Roseman has represented plaintiffs in employment cases since 1975, including Hillig v. Rumsfeld, 381 F.3d 1088 (10th Cir. 2004); Davey v. Lockheed Martin Corp., 304 F.3d 1204 (10th Cir. 2002); Booker v. Brown, 619 F.2d 57 (10th Cir. 1980); Sedillos v. Bd. of Educ. of Sch. Dist. No. 1, 313 F. Supp. 2d 1091 (D. Colo. 2005); Jones v. Frank, 819 F.Supp. 923 (D.Colo. 1993); Punahele v. United Air Lines, 756 F.Supp. 487 (D.Colo. 1991); Nixon v. UFCW, Local No. 7, 751 F. Supp. 1491 (D. Colo. 1990); Price v. Federal Express Corp., 660 F. Supp. 1388 (D. Colo. 1987); Potter v. Continental Trailways, 480 F.Supp. 207 (D.Colo. 1979). He currently serves on the Executive Board of the National Employment Lawyers Association (NELA) and is the chair of the Executive Board of NELA’s affiliate in Colorado, the Plaintiff Employment Lawyers Association. Mr. Roseman is also a fellow of the College of Labor and
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Employment Lawyers. Although named Plaintiffs are not required to be informed beyond a basic
knowledge of the status and underlying legal basis of the action, see Schwartz, 178 F.R.D. at 553, the named Plaintiffs here are in fact very well-qualified to lead this class. Mr. Tomlinson is a Director of Strategy, Market and Project Analysis for El Paso. Ms. Ballesteros is a former Senior Capacity Analyst in Volume Accounting (and a former analyst in the Office of General Counsel). Mr. Muckelroy is a Negotiator/Manager for El Paso Natural Gas (EPNG) Marketing. The class representatives and their counsel will therefore fairly and adequately protect the interests of the class.
B. The Proposed Class Should Be Certified Under Rule 23(b)(2). As stated, this Court must also determine whether the case fits within one or more of the subcategories of Fed.R.Civ.P. 23(b). Plaintiffs seek certification under Rule 23(b)(2), which authorizes class certification where a defendant is alleged to have “acted or refused to act on grounds generally applicable to the class thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”5 The Advisory Committee Notes state that Rule 23(b)(2) “is intended to reach situations where a party has taken action…with respect to a class, and final relief of an injunctive nature…settling the legality of the behavior with respect to the class as a whole
5 Plaintiffs also seek certification under Rule 23(b)(1), but in view of the relevant case law supporting Rule 23(b)(2) certification, Plaintiffs believe the Court need not determine whether Rule 23(b)(1) certification is also appropriate. See Richards, 235 F.R.D. at 176 ( “in light of its decision to certify a (b)(2) class,” “the court does not reach the merits of whether the proposed class could be certified under Rule 23(b)(1)”).
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is appropriate.” Advisory Comm. Notes to 1966 Amendments. Cases in this circuit hold that certification of an ERISA claim is appropriate under
Rule 23(b)(2) where declaratory or injunctive relief is sought. See, e.g, In re Williams Companies ERISA Litigation, 231 F.R.D. 416, 425 (N.D. Okla. 2005) (certification under Rule 23(b)(1)(B) and 23(b)(2)); Vaszlavik, 183 F.R.D. at 272.
Other cash balances cases, specifically including Wells v. Gannett Retirement Plan, have also been certified under Rule 23(b)(2). See, e.g., Wells, supra, Ex. 2 at 2; Richards, 235 F.R.D. at 176; In re Citigroup, 2006 WL 3770504 at *6; Hirt v. Equitable Retirement Plan for Employees, 450 F.Supp.2d 331, 334 (S.D.N.Y. 2006) (indicating that class was certified under 23(b)(1) and (b)(2) “to avoid the potential of inconsistent or varying adjudications for individual members of the class”); Amara, 2002 WL 31993224 at *4; Engers, supra, Ex. 4 at 11 (certifying class under 23(b)(2) “[i]nasmuch as Plaintiffs here are seeking various injunctive and declaratory relief” for statutory violations).
This action is like the other cash balance cases certified under Rule 23(b)(2). There is no question that defendants have acted or refuse to act on grounds generally applicable to class members. Plaintiffs have requested that this Court order appropriate equitable and remedial relief to enjoin and provide redress for Defendants’ violations of ERISA’s benefit accrual standards and its disclosure requirements. See Cplt. at 14-15; Amara, 2002 WL 31993224 at *4 (“Plaintiffs’ claims fall squarely within the purview of this provision because they seek injunctive relief, pursuant to ERISA, generally applicable to the entire class”).
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The fact that monetary relief might also be obtained if plaintiffs prevail does not prevent Rule 23(b)(2) certification. See Richards, 235 F.R.D. at 174 (“The defendants argue that ‘the only real interest of these former participants is the possibility of obtaining monetary relief”). “As long as the plaintiffs’ primary claim is for injunctive relief, certification under Rule 23(b)(2) is proper.” Colorado Cross-Disability Corp., 184 F.R.D. at 361; accord, Richards, 235 F.R.D. at 174. As In re Citigroup observed, Rule 23(b)(2) certification is appropriate even where the “recalculation and crediting of withheld pension benefits will be the direct anticipated consequence” of a ruling in favor of the plaintiffs because “a declaratory judgment is normally a prelude to a request for other relief, whether injunctive or monetary.” Id. at *6.
C. Plaintiffs’ Counsel Should be Appointed as Class Counsel. As amended effective December 1, 2003, Fed. R. Civ. P. 23(g)(1) requires that the Court appoint class counsel, based on consideration of (1) the work counsel has done in identifying or investigating potential claims in the action; (2) counsel’s experience in handling class actions, other complex litigation, and claims of the type asserted in the action; (3) counsel’s knowledge of the applicable law; and (4) the resources counsel will commit to representing the class. As detailed above, Plaintiffs’ counsel are highly experienced in complex employment litigation, particularly ERISA class actions, and are knowledgeable about the applicable law. Plaintiffs’ counsel represent classes in cases similar to the case at bar. Class counsel have investigated Plaintiffs’ claims prior to bringing this action and are prepared to commit significant resources to represent the
19

class in this action. II. Conditional Certification of an ADEA Collective Action for the First and
Third Claims for Relief Is Appropriate. The Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §621 et seq., was enacted “to protect a relatively older worker from discrimination that works to the advantage of the relatively young.” General Dynamics Land Systems v. Cline, 540 U.S. 581, 591 (2004). The ADEA prohibits an employer from discriminating against any individual with respect to compensation, terms, conditions or privileges of employment, including employee benefits, because of the individual’s age. 29 U.S.C. §§623(a)(1) and 630(l). The ADEA also prohibits an employer from limiting, segregating or classifying its employees in any way that adversely affects their status as employees because of age. 29 U.S.C. §623(a)(2). “The ADEA expressly authorizes employees to bring collective actions in behalf of themselves and other employees similarly situated.” Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 171 (1989). “Congress has stated its policy that ADEA plaintiffs should have the opportunity to proceed collectively. A collective action allows age discrimination plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources. The judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged discriminatory activity.” Id. at 170. In this instance, Plaintiffs’ age discrimination claims (Claims I and III) allege that
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El Paso’s transition to a “cash balance” pension formula discriminated against older employees by:
(1) Effecting a benefit “freeze” during which older workers do not earn any additional pension benefits for a period of years, while younger workers receive benefits under the cash balance formula without any contingency; and
(2) Causing future rates of benefit accrual to decrease with advancing age. The named Plaintiffs seek approval from this Court to maintain Claims I and III as an ADEA “collective” or “representative” action.
A. Plaintiff Wayne Tomlinson Filed a Timely Charge of Age Discrimination with the EEOC in Accordance with ADEA Section 7(d).
On July 16, 2004, named plaintiff Wayne Tomlinson filed a class-wide charge of discrimination on behalf of himself and other workers in the protected age group with the Equal Employment Opportunity Commission (“EEOC”) on July 16, 2004. Defendants denied the charge and the EEOC was unable to resolve the controversy. Cplt. ¶39. Plaintiffs filed this action in accordance with ADEA §7(d) on December 28, 2004.
ADEA Section 7(d), 29 U.S.C. §626(d), requires a plaintiff to file an age discrimination charge with the EEOC before bringing a collective action. Thiessen v. General Electric Capital Corporation, 996 F.Supp. 1071, 1074-75 (10th Cir. 2001). Under the “single filing” rule, only one named Plaintiff need file a timely charge in order to satisfy the requirements on behalf of a class of similarly-situated individuals. Id. at 1075; Foster v. RuhrPumpen, Inc., 365 F.3d 1191, 1197 (10th Cir. 2004) (“if one plaintiff has filed a timely EEOC complaint as to that plaintiff’s individual claim, then co-
21

plaintiffs with individual claims arising out of similar discriminatory treatment in the same time frame need not have satisfied the filing requirement”).
In this instance, Mr. Tomlinson satisfied the filing requirement on behalf of the entire class.
B. Plaintiffs Have Demonstrated that the Putative Class Members Are “Similarly Situated” to Justify Conditional Certification of a Collective Action Under ADEA Section 7(b).
After an EEOC charge is filed, plaintiffs must demonstrate that they are “similarly situated” with other putative class members in order to maintain a collective action. Section 7(b) of the ADEA, 29 U.S.C. § 626(b), incorporates certain provisions of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., including the FLSA’s procedure for bringing collective actions. Thiessen, 267 F.3d at 1102. This procedure permits plaintiffs to proceed under the ADEA “for and in behalf of...themselves and other employees similarly situated.”
The Tenth Circuit has approved a two-step approach to determine whether plaintiffs are “similarly situated.” Thiessen, 267 F.3d at 1102; see generally Vaszlavik, supra, 175 F.R.D. at 678; Williams v. Sprint/United Management Co., 222 F.R.D. 483, 485 (D.Kan. 2004). During the “notice stage,” “the district court makes a decision – usually based on the pleadings and any affidavits which have been submitted – whether notice of the action should be given to potential class members.” Thiessen, 996 F.Supp. at 1080. This step utilizes a “lenient standard” and “typically results in conditional certification of a representative action.” Id. See also Sperling v. Hoffman-LaRoche, 118
22

F.R.D. 392, 406 (D.N.J. 1988), aff’d in relevant part, 862 F.2d 439 (3d Cir. 1988), aff’d and remanded by 493 U.S. 165 (1989) (permitting notice to absent class members “before the ‘similarly situated’ issue is decided...insure[s] that all possible class members who are interested are present, and thereby assure[s] that the full ‘similarly situated’ decision is informed, efficiently reached, and conclusive”).
After members of the class file consents with the court and discovery takes place, the court makes a factual determination of whether plaintiffs are “similarly situated.” This second step involves a “stricter” standard, taking into account a number of factors, including “(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the defendant which appear to be individual to each plaintiff; (3) fairness and procedural considerations; and (4) whether plaintiffs made the filings required by the ADEA before initiating suit.” Thiessen, 267 F.3d at 1103.
Here, because discovery is not complete, the more lenient standard of the notice stage applies. See Vaszlavik, 175 F.R.D. 678-79 (lower standard for conditional certification applied even where “significant discovery” had already taken place because discovery remained incomplete). As described next, Plaintiffs satisfy that standard.
C. Plaintiffs Have Set Forth Substantial Allegations that El Paso’s Implementation of a Cash Balance Formula with Understated Opening Balances and a “Higher of” Transition Rule Is a “Decision, Policy, or Plan” that Discriminated Against Employees Based on Age.
Conditional certification of a class under the initial “notice stage” “requires nothing more than substantial allegations that the putative class members were together
23

the victims of a single decision, policy, or plan infected by discrimination.” Thiessen, 267 F.3d at 1102. Allegations of discrimination are sufficient to permit conditional certification; “whether plaintiffs can meet their burden in the liability phase...is irrelevant to the question of §216(b) certification.” Vaszlavik, 175 F.R.D. at 679-80 (conditionally certifying class based on plaintiffs’ allegations that class members were “victims of a “Strategic Plan” by defendant to eliminate older employees and their associated costs”); see also Williams, supra, 222 F.R.D. at 487 (plaintiffs’ allegations were “more than sufficient to support provisional certification”); Sperling, 118 F.R.D. at 407 (plaintiffs’ detailed allegations in pleadings and supporting affidavits were sufficient to allow class notice); Mueller v. CBS, Inc., 201 F.R.D. 425, 429 (W.D.Pa. 2001) (sufficient facts were provided “on which a reasonable inference could be made that defendant orchestrated or implemented a single decision, policy or plan to discriminate against their employees on the basis of age”).
As in these cases, the named Plaintiffs have set forth substantial allegations that the putative class members “were together the victims of a single decision, policy or plan infected by discrimination.” The Complaint alleges that El Paso froze the benefits that employees earned under the prior benefit formula and established initial account balances at levels “far below” the value of the frozen benefits, particularly for older, longer-service participants. ¶¶18-19, 22, 33. The difference between the value of the pension benefits earned before the conversion and the initial account balances was significantly larger for “older” employees. ¶¶19, 25, 33-34.
24

El Paso’s transition provisions have provided that employees can only receive the “higher of” (1) their frozen previously-earned benefits with nothing added to those benefits, or (2) the understated opening balances with the “cash balance” accruals added to them. Participants have not been permitted to receive their previously-earned benefits plus any additional benefits earned under the cash balance formula after the conversion (an “A + B” transition). ¶¶20-21, 32-35.
For older employees, the difference in value between the initial account balances and their previously-earned benefits creates periods of time during which no additional benefits were earned. ¶¶22, 25, 32-35. These periods of time are referred to as “wearaway” periods. A “wear-away” causes employees “to work for many years following [the conversion] without actually accruing any new benefits, despite the existence of a hypothetical cash balance account that show[s] benefits being added each quarter.” Richards v. FleetBoston, 427 F.Supp.2d 150, 155 (D.Conn. 2006).6
The Complaint further alleges that younger employees do not experience a benefit freeze, nor do they experience any wearaway periods. Instead, younger employees
6 Accord 58 F.R. 46835, 46837 (Sept. 3, 1993) (when “a plan utilizes a ‘wearaway’ formula,” some employees will “not receive an accrual for the plan year”); 68 F.R. 17277, 17285 (April 9, 2003) (describing “wear-away period” as when a “change from a traditional defined benefit formula to a cash balance formula results in a period of time during which there are no accruals (or minimal accruals) with regard to normal retirement benefits or an early retirement subsidy”).
Section 701(a)(1) of the 2006 Pension Protection Act, P.L. 109-280, prospectively outlawed “wear-aways” in cash balance conversions, regardless of whether they have a disparate impact on older workers.
25

receive annual increases to their pensions without contingency. ¶35. Plaintiffs’ age discrimination claim is also based on a second feature of El Paso’s
cash balance design. Even when benefits of older employees ultimately resume after these “wearaway” periods, they accrue at lower rates than under the previous pension formula and at lower rates compared to the rates of benefit accrual offered to younger employees. ¶25, 49. El Paso credits participants’ Cash Balance Accounts with pay and interest credits on a quarterly basis. The pay credit increases at certain intervals, beginning at a minimum of 4% of salary for participants whose age and years of credited service is less than 35 points, 5% for participants whose age and years of credited service is between 35 and 49, 6% for age and service between 50 and 64, and a maximum of 7% of salary for participants whose age and service totals 65 points or more. The pay credit does not increase thereafter. ¶24. As a result, participants with 65 or more age and service points experience decreases in their rates of benefit accrual every year until they retire. ¶49.
Documentary evidence from the discovery taken to date confirms these allegations. El Paso’s purported “204(H)” notice concedes that there are periods where “accruals under the Plan may effectively cease,” without illustrating how long such periods last. Ex. 8. An August 14, 1996 presentation by the William Mercer consulting company to the El Paso Pension Committee further states that the “Impact on Employees” is a “36% average reduction in pension benefits at age 60.” Ex. 9 (EPTO 3669). An earlier presentation by Mercer to El Paso stated that cash balance plans are “popular with employers” precisely because of “Masking a cut in pension plan benefits.” Ex. 10 (EPTO
26

3505). El Paso also recognized that the reductions for older employees would be greater than for younger employees. Ex. 10 (EPTO 3507).
Plaintiffs’ “substantial allegations” and documentary evidence thus establish that El Paso’s conversion to a cash balance pension formula discriminates against participants in the El Paso Pension Plan based on age. This Court should therefore conditionally certify an ADEA class to give the putative class members notice and the opportunity to join the collective action.
D. The Proposed ADEA Notice and Opt-In Consent Form Are “Accurate and Informative” and Therefore Proper.
Upon certification of a collective action, plaintiffs may send a court-approved notice and consent form to potential members of the class. Vaszlavik, 175 F.R.D. at 68283. The notice should be “accurate and informative.” Sperling, 493 U.S. at 172. The named Plaintiffs seek to sue on behalf of any and all persons who:
1. Are former or current El Paso employees; 2. Participated in the El Paso Pension Plan on or after the January 1, 2002 date
on which the Pension Plan was fully converted to a cash balance design; and 3. Are over age 40, or will be over age 40 as of the date of the judgment. A proposed notice to the members of this class with an opt-in consent form is attached to the Proposed Order. The notice and consent form will be mailed with a stamped envelope for returns. The notice and consent form follow the format, style, and wording of other notices approved by the courts. See, e.g., Sperling, 118 F.R.D. at 415-
27

17. Plaintiffs are entitled to obtain the names and addresses of the putative class
members. Vaszlavik, 175 F.R.D. at 683; Sperling, 493 U.S. at 168-69 (“The District Court was correct to permit discovery of the names and addresses of the ... employees”). The proposed Order therefore requires Defendants to timely produce a mailing list to Plaintiffs.
Plaintiffs’ counsel will pay the cost of the mailing and related services (e.g., staffing 1-800 numbers to answer questions). In addition to notifying potential class members by mail, Plaintiffs will provide notice through newspapers and the Internet. See Geller v. Markham, 481 F.Supp. 835 (D.Conn. 1979), aff’d in part, rev’d in part on other grounds, 635 F.2d 1027 (2d Cir. 1980), cert. denied, 451 U.S. 945 (1981) (newspaper notice given in addition to mailing).
Plaintiffs propose that the time limit for consents will be 90 days after the mailing is complete. See Sperling, 24 F.3d 463, 472 (3d Cir. 1994) (district court can set “reasonable cut-off date for closing the opt-in class”); Rosen v. Reckitt & Colman, Inc., 1991 U.S. Dist. LEXIS 14663, *1 (S.D.N.Y. 1991) (adopting 90-day limit). If no response is received in the first 45 days, Plaintiffs will mail reminder notices to ensure that participants have the notice and respond on a timely basis. If notices are required to be re-mailed because any addresses continue to be out of date, the time period for responding will start with the date of the re-mailed notice.
As noted in the Proposed Order, to avoid unnecessarily burdening the Clerk of
28

Court with logging responses, the consents will be mailed to a Post Office box maintained
by an experienced administrative firm for the Plaintiffs which will be responsible for
assembling the list of persons who consent. Defendants will be able to review the original
consents to verify the list.
Conclusion
For the foregoing reasons, Plaintiffs respectfully request that the court certify an
ERISA class action pursuant to Rule 23, approve an ADEA collective action for the First
and Third Claims, and authorize notice to the putative class members in the form
provided.
DATED: March 19, 2007
Respectfully submitted,
Stephen R. Bruce Allison C. Caalim 805 15th St., NW, Suite 210 Washington, D.C. 20005 202 / 371-8013 stephen.bruce@prodigy.net
s/ Barry D. Roseman Barry D. Roseman Roseman & Kazmierski, LLC 1120 Lincoln St., Suite 1607 Denver, CO 80203-2141 303 / 839-1771 broseman@nela.org
Attorneys for Plaintiffs
29

 
 Case 1:04-cv-02686-WDM-CBS Document 229 Filed 04/28/2008 USDC Colorado Page 1 of 16
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 04-cv-2686 (WDM/CBS)
WAYNE TOMLINSON, ALICE BALLESTEROS, GARY MUCKELROY, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
EL PASO CORPORATION, and EL PASO PENSION PLAN,
Defendants. __________________________________________________________________
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE ADEA CLAIM __________________________________________________________________
Stephen R. Bruce Allison C. Caalim 805 15th St., NW, Suite 210 Washington, D.C. 20005
Barry D. Roseman McNamara, Roseman, Martinez & Kazmierski, LLP 1640 East 18th Avenue Denver, CO 80218-1202
Attorneys for Plaintiffs

Case 1:04-cv-02686-WDM-CBS Document 229 Filed 04/28/2008 USDC Colorado Page 2 of 16
Table of Contents Plaintiffs’ Response to Defendants’ Statement of Undisputed Material Issues . . . . . . . . 1 I. The Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 II. The ADEA Charge Is Timely Because the Pension Structure that Produces
Wear-Away Is a Discriminatory “Pattern or Practice” that Continued to Be Applied Into and Beyond the Filing Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 III. El Paso Did Not Make the Age-Related Basis of the Wear-Away Periods Known to Employees; Mr. Tomlinson Did Not Know About This Until He Consulted Counsel Less Than 300 Days Before Filing His Charge . . . . . . . . . . . . . . . . . . . . 8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
i

Case 1:04-cv-02686-WDM-CBS Document 229 Filed 04/28/2008 USDC Colorado Page 3 of 16
TABLE OF AUTHORITIES FEDERAL CASES
AMTRAK v. Morgan, 536 U.S. 101 (2002) ............................................................ 6 Amara v. CIGNA, 534 F. Supp. 2d 288 (D. Conn. 2008) ....................................... 6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ........................................... 3 Bazemore v. Friday, 478 U.S. 375 (1986) .............................................................. 6 Byers v. City of Albuquerque, 150 F.3d 1271 (10th Cir. 1998) .............................. 3 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ....................................................... 3 Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513 (10th Cir.1994) 3 Connolly v. McCall, 254 F.3d 36 (2d Cir. 2001) ................................................ 4, 7 Courtney v. LaSalle University, 124 F.3d 499 (3d Cir. 1997) ................................ 9 Delaware College v. Ricks, 449 U.S. 250 (1980) ................................................... 9 Florida v. Long, 487 U.S. 223 (1988) .................................................................... 8 Grayson v. Kmart Corp., 79 F.3d 1086 (11th Cir. 1996) ....................................... 9 Held v. Manufacturers Hanover Leasing, 912 F.2d 1197 (10th Cir. 1990) ........... 4 Hirt v. Equitable, 441 F. Supp. 2d 516 (S.D.N.Y. 2006) ..................................... 10 International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977) ... 3 Ledbetter v. Goodyear Tire and Rubber Co., 127 S. Ct. 2162 (2007) ................... 7 Montoya v. Chao, 296 F.3d 952 (10th Cir. 2002) ................................................ 10 Thiessen v. GE Capital Corp., 267 F.3d 1095 (10th Cir. 2001), cert. denied,
536 U.S. 934 (2002) .......................................................................................... 5 ii

Case 1:04-cv-02686-WDM-CBS Document 229 Filed 04/28/2008 USDC Colorado Page 4 of 16 FEDERAL STATUTES, REGULATIONS AND RULES
ADEA §4(f)(2), 29 U.S.C.§626(f)(2) ..................................................................... 9 29 C.F.R. 1625.10(c) .............................................................................................. 9 Fed. R. Civ. P. 56(c) ............................................................................................ 2-3
MISCELLANEOUS Eglit, Age Discrimination (2d ed. 1997), vol. 1 .................................................... 9
iii

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Plaintiffs’ Response to Defendants’ Statement of Undisputed Material Issues 1 1. Undisputed. 2. Plaintiffs dispute that Mr. Tomlinson had notice of “all facts upon which he
rested his ADEA claim at the time he received [El Paso’s] communications.” The expert reports of Robert Bardwell, Ph.D. (Ex. A), and Claude Poulin, F.S.A. (Ex.B), show that the cash balance conversion often resulted in age-related periods of “wear-away” lasting as many as 14 years and in older employees’ future benefits being reduced by as much as 100%. Those reports were based on data that was unavailable to Mr. Tomlinson or other employees (see Ex. A at 15-16; Ex. B at 2). Plaintiffs also dispute that the written communications to employees between 1996 and 2001 adequately or understandably describe the age-related reductions resulting from “the changes to the pension plan.” The expert report of Prof. James Stratman (Ex. C) shows that El Paso’s communications failed to disclose the reductions or other disadvantages of the cash balance conversion.
3. Mr. Poulin’s report shows that participants were not given cash balance accounts equivalent to the full value of their benefits. Instead, they were given accounts that fell short in three respects and fell farther short as the 5-year transition period progressed. Ex. B at 13-17. El Paso omits that the transition periods applicable to former Sonat and Coastal employees ran to December 31, 2004 and March 31, 2006. Id. at 4.
4. El Paso again omits the transition periods until December 31, 2004 and
1 In its brief, El Paso improperly asserts additional statements of fact beyond its eight numbered statements in violation of Local Rule 56.1. See Defs. Br. at 4, 5-8, and 9.

Case 1:04-cv-02686-WDM-CBS Document 229 Filed 04/28/2008 USDC Colorado Page 6 of 16
March 31, 2006 that applied to former Sonat and Coastal employees under the Plan. 5. The January 1, 1997 date again overlooks the dates for Sonat and Coastal. 6. El Paso provided data in response to discovery requests which enabled the
Plaintiffs’ experts to show the discrimination in which El Paso has engaged. Ex. A at 1516, Ex. B at 2. Without disclosures or the data on the effects of the wear-aways on older and younger employees, Mr. Tomlinson did not know that the periods of wear-away were based on age. Mr. Tomlinson prepared Excel spreadsheets on September 15, 2003 to begin to figure out the effect of the amendments. But he did not know that the wearaways were based on age until he consulted with his current counsel in early 2004. Ex. D at 23, line 19 - 24, line 8; 83, line 15 - 84, line 16; 98, line 11 - 99, line 22; 279, lines 1421. Mr. Tomlinson did not retire until May 1, 2007. Ex. F.
7. Undisputed. 8. Disputed. The EEOC accepted Mr. Tomlinson’s charge as a classwide charge and categorized it as a “continuing violation.” Ex. E. Plaintiffs have been unable to determine whether any other member of the proposed collective action filed a charge because El Paso refuses to produce documents after the July 16, 2004 date on which Mr. Tomlinson formally filed his charge. I. The Standard of Review Pursuant to Federal Rule 56(c), summary judgment may only be granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together
2

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with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FRCP 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). The moving party has the initial burden of showing an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets that burden, the other party must demonstrate a “genuine issue for trial on a material matter.” Concrete Works, 36 F.3d at 1518. The factual record is viewed in the light most favorable to the nonmovant. Byers v. City of Albuquerque, 150 F.3d 1271,1274 (10th Cir. 1998). II. The ADEA Charge Is Timely Because the Pension Structure that Produces
Wear-Away Is a Discriminatory “Pattern or Practice” that Continued to Be Applied Into and Beyond the Filing Period. El Paso has engaged in a “pattern or practice” of age discrimination which continued into and beyond the 300-day period before the charge was filed. To establish a “pattern or practice,” a plaintiff must show that the “discrimination was the company’s standard operating procedure–the regular rather than the unusual practice.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 337 (1977). A pattern or practice is “more than the mere occurrence of isolated or accidental or sporadic discriminatory acts.” Id. In a pattern or practice claim, “the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking.” Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 (1984). A pattern or practice from the application of a
3

Case 1:04-cv-02686-WDM-CBS Document 229 Filed 04/28/2008 USDC Colorado Page 8 of 16
pension provision is not uncommon. In City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 716 (1978), pension provisions that indirectly required women to contribute more to a plan than men constituted a pattern or practice of discrimination. In such cases, the discrimination occurs “each time [the employer] applies the policy in a benefit calculation,” Hulteen v. AT&T Corp., 498 F.3d 1001, 1007 (9th Cir. 2007) (en banc), or forces employees “to give up accrual of ... pension benefits” by “repeated application” of the policy. Connolly v. McCall, 254 F.3d 36, 41 (2d Cir. 2001). Other cases involving pension provisions hold that a limitations period does not begin until “each individual plaintiff retired” and “the alleged discriminatory provision of the pension plan was applied ... and the defendant could no longer amend the bridging provision to cure such discrimination.” Maki v. Allete, Inc., 383 F.3d 740, 745 (8th Cir. 2004). Accord EEOC v. North Gibson School Corp., 266 F.3d 607, 618 (7th Cir. 2001).2 Here, Mr. Tomlinson did not retire until May 1, 2007. Ex. F.
The Tenth Circuit holds that “a claim of age discrimination ... may be based on a continuing policy and practice of discrimination that began before the statutory filing period, as long as the employer continues to apply the discriminatory policy and practice to a point within the relevant filing period, and plaintiff is not merely complaining of the continuing effects of a discriminatory practice that existed only before the relevant filing
2 The same rule applies under ERISA. See, e.g., Held v. Manufacturers Hanover, 912 F.2d 1197, 1205 (10th Cir. 1990) (cause of action accrues when an “application for benefits is denied”).
4

Case 1:04-cv-02686-WDM-CBS Document 229 Filed 04/28/2008 USDC Colorado Page 9 of 16
period.” Furr v. AT&T Technologies, 824 F.2d 1537, 1543-44 (10th Cir. 1987) (policy or practice of failing to promote older employees to supervisory positions). Accord, Gray v. Phillips Petroleum Co., 858 F.2d 610, 614-15 (10th Cir. 1988) (“Where plaintiffs challenge not just one incident or isolated incidents of conduct violative of the ADEA, but an unlawful practice involving several incidents, a charge filed with the EEOC is timely when it is filed within 180 days [or 300 days] of the termination of the policy and practice adversely affecting the plaintiffs”). In Thiessen v. GE Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001), cert. denied, 536 U.S. 934 (2002), a district court’s decision to decertify a collective action was reversed because the court failed to recognize that “plaintiffs were asserting a pattern or practice claim.” The plaintiffs “alleged it was defendants’ standard operating procedure, implemented through the [Management Development Program] and the blocker policy to discriminate against employees ... on the basis of age.” 267 F.3d at 1105. Mr. Thiessen was denied several promotions and downgraded in performance reviews between 1993 and 1995. Mr. Thiessen filed his charge well over 300 days after GE Capital began implementing the blocker policy but while the policy was still being applied.
Here, the reports of Plaintiffs’ experts establish that El Paso’s age-discriminatory wear-aways were not “isolated or accidental or sporadic” but the standard procedure under the plan after the 5-year transition periods. The expert reports show that the wearaway design can prevent older, longer-service employees from earning additional benefits
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for periods of over 14 years. Ex. A (Bardwell) at 5-9; Ex. B (Poulin) at 13-17. Defendants argue that because Plaintiffs’ claim stems from an amendment to a
pension plan, a discrete act is involved and the continuing violation theory cannot be applicable under AMTRAK v. Morgan, 536 U.S. 101, 114 (2002). See Defs. Br. at 9. Morgan places limits on the continuing violation theory of discrimination for Title VII claims based on “discrete acts” of discrimination, such as termination, failure to promote, or refusal to hire, which the Court held “occur[]” on the day that they “happened.” Id. at 110. El Paso neglects to mention that Morgan expressly distinguishes “pattern or practice claims.” Id. at 115 n.9. Here, the wear-aways of cash balance accruals for older employees are not the result of a “discrete act” but the product of the repeated application of the “greater-of” design (instead of an “A plus B” benefit accrual structure), combined with a number of age-related factors. Ex. B at 13-17; accord Amara v. CIGNA, 534 F.Supp.2d 288, 347 (D. Conn. 2008). The wear-away is produced by the repeated application of that design to each quarter of pay credits under the cash balance formula.
In Bazemore v. Friday, 478 U.S. 375 (1986), the Supreme Court reversed a dismissal of a disparate pay claim on timeliness grounds, holding that “[e]ach week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII.” 478 U.S. at 396. Morgan, the primary case on which El Paso relies, cites Bazemore with approval as a pattern or practice case where “each week’s
6

Case 1:04-cv-02686-WDM-CBS Document 229 Filed 04/28/2008 USDC Colorado Page 11 of 16
paycheck” under a “discriminatory salary structure” was an actionable wrong.” 536 U.S. at 111-12. Except that it involves pension accruals instead of pay, this case is like Bazemore. Each quarter that El Paso causes the cash balance credits to fail to accrue for older employees while the same credits accrue for younger employees is a “fresh act of discrimination.” See Reese v. Ice Cream Specialties, 347 F.3d 1007, 1012 (7th Cir. 2003) (“If an employer tells his employee, ‘I am going to infringe your rights under Title VII at least once every year you work for me,’ this does not start the statute of limitations running on the future violations, violations that have not yet been committed”).
Defendants also analogize this case to Ledbetter v. Goodyear Tire and Rubber Co., 127 S. Ct. 2162 (2007). Defs. Br. at 9. Ledbetter holds that the reduced paychecks that an employee receives as a result of earlier discriminatory performance evaluations do not trigger new charging periods. Id. at 2169. The Supreme Court distinguished Bazemore as standing “for the proposition that an employer violates Title VII and triggers a new EEOC charging period whenever the employer issues paychecks using a discriminatory pay structure.” Id. at 2174. Here, as Mr. Poulin’s report shows, El Paso is applying a “discriminatory [pension] structure.” Ex. B at 6-8, 13-17. In addition, El Paso has adopted additional amendments which have extended this policy or practice to new groups of employees effective in 2005 and 2006. See Ex. B at 3-4. Each time El Paso applies the policy to require employees “to give up accrual of ... pension benefits” is a “repeated application” of the discriminatory policy. Connolly, supra, 254 F.3d at 41.
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Finally, Defendants inaccurately contend that Florida v. Long, 487 U.S. 223, 239 (1988), holds that Bazemore is inapplicable to “pension plans.” Defs. Br. at 10. Long simply holds that it “is not correct to consider payments of benefits based on a retirement that has already occurred as a sort of continuing violation.” Id. (emph. added). III. El Paso Did Not Make the Age-Related Basis of the Wear-Away Periods
Known to Employees; Mr. Tomlinson Did Not Know About This Until He Consulted Counsel Less Than 300 Days Before Filing His Charge. Even if the Court did not recognize Mr. Tomlinson’s EEOC charge as involving the repeated application of a discriminatory policy, El Paso is not entitled to summary judgment. Defendants assert that Mr. Tomlinson had, or should have had, notice of the discrimination through written communications distributed by El Paso between 1996 and 2001. Defs. Br. at 5-6. But Defendants’ communications did not disclose that the wearaways discriminated on the basis of age. Mr. Tomlinson testified that he did not know that the wear-away periods discriminated based on age until he consulted counsel in early 2004. Pls. Resp. to Defs. Facts ¶6.3 The expert reports of Dr. Bardwell and Mr. Poulin show that calculating the duration of the wear-away periods is a complex process. As their reports show, the age of the employees is an integral part of the calculation of wear-aways, but the impact of the wear-aways based on age is not obvious a priori. Ex. A at 9-12 and B at 13-17. The
3 To contest this, Defendants quote an August 7, 2003 email. Defs. Br. at 7. But it is clear from the e-mail that Mr. Tomlinson is not talking about wear-aways.
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written communications that El Paso provided employees disclose none of this. Professor Stratman’s expert report shows that El Paso’s communications never disclose the length of the wear-aways or their age-related basis. Ex. C at 7-12, 12, 14-15.
In Delaware College v. Ricks, 449 U.S. 250, 258 (1980), the Supreme Court held that the limitations period begins to run when the employer “established its official position and made that position apparent” to the plaintiff. See also Courtney v. LaSalle University, 124 F.3d 499, 504 (3d Cir. 1997) (period begins when the employer made its “position apparent to the employee by explicit notice”); Grayson v. Kmart Corp., 79 F.3d 1086, 1100 n.19 (11th Cir. 1996) (“time for filing an EEOC charge begins to run when the employee receives unequivocal notice of the adverse employment decision”). Even an “ambiguity” in “the employer’s notice to the employee ... may be sufficient to delay the accrual of the discrimination claim, and therefore the commencement of the charge-filing period.” Eglit, Age Discrimination (2d ed. 1997), vol. 1, §6.11. Here, to defend against this charge, El Paso will have to establish that its practice falls within the “bona fide plan” exception in Section 4(f)(2) of the ADEA. The EEOC’s regulations on that Section provide that “the lower benefits to older employees on account of age” must be provided by the “express terms of the plan” so “older employees have some opportunity to know of the policy and to plan (or protest) accordingly.” 29 C.F.R. 1625.10(c).
In this instance, El Paso’s written communications never disclosed that there were longer wear-aways or lower benefits for older employees on account of age. Because El
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Paso did not disclose that information, Mr. Tomlinson eventually had to prepare Excel

spreadsheets to try to figure out the effect of the amendments. But even then he did not

learn that the periods of wear-away discriminated on the basis of age until he contacted

counsel in the spring of 2004. Pls. Resp. to Defs. Facts ¶6. “Fair warning” is not

provided by a communication that requires the person to do “research beyond the

document itself.” Hirt v. Equitable, 441 F. Supp. 2d 516, 538 (S.D.N.Y. 2006). Because

El Paso failed to provide notice of “the lower benefits to older employees on account of age,” it cannot bar Mr. Tomlinson’s charge of discrimination as untimely. 4

Conclusion

For the foregoing reasons, Plaintiffs respectfully submit that El Paso has not

shown that summary judgment should be granted in its favor on the ADEA claim.

DATED: April 28, 2008

Respectfully submitted,

s/ Stephen R. Bruce Stephen R. Bruce Allison C. Caalim 805 15th St., NW, Suite 210 Washington, D.C. 20005 202 / 371-8013 stephen.bruce@prodigy.net

s/ Barry D. Roseman Barry D. Roseman McNamara, Roseman, Martinez &

4 Alternatively, El Paso’s failure to disclose in accordance with the regulations equitably tolls the filing period. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
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Kazmierski, LLP 1640 East 18th Avenue Denver, CO 80218-1202 303 / 333-8700 bdr@18thavelaw.com Attorneys for Plaintiffs Plaintiffs’ Exhibits Ex. A - Expert statistical report of Robert A. Bardwell, Ph.D. Ex. B - Expert actuarial report of Claude Poulin, F.S.A. Ex. C - Expert communications report of Professor James F. Stratman. Ex. D - Excerpts from Jan. 29-30 deposition of William Tomlinson. Ex. E - William Tomlinson’s EEOC charge and Investigation Information Sheet. Ex. F - William Tomlinson’s May 1, 2007 retirement election form and June 2007 TrueUp calculation from Mercer’s Benecalc system.
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that, on this 28th day of April 2008, a true and correct copy of Plaintiffs’ Opposition to Defendants’ Motion for Partial Summary Judgment on the ADEA Claim, with Exhibits A through F, and this Certificate of Service was served through the CM/ECF electronic filing system on the following attorneys for the Defendants:

Darren E. Nadel Littler Mendelson, P.C. One Tabor Center 1200 17th Street, Suite 1000 Denver, CO 80202
Christopher J. Rillo, Esq. Groom Law Group 1701 Pennsylvania Ave., N.W. Washington, D.C. 20006-5893

Raymond W. Martin Wheeler Trigg Kennedy, LLP 1801 California Street, Suite 3600 Denver, Colorado 80202

s/ Stephen R. Bruce

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 04-cv-02686-WDM-CBS
WAYNE TOMLINSON, ALICE BALLESTEROS, GARY MUCKELROY, individually and on behalf of all others similarly situated,
Plaintiffs, v.
EL PASO CORPORATION, and EL PASO PENSION PLAN,
Defendants. ______________________________________________________________________________
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ RENEWED MOTION FOR SUMMARY JUDGMENT ON ADEA CLAIM
______________________________________________________________________________
Stephen R. Bruce Allison C. Pienta 805 15th St., NW, Suite 210 Washington, D.C. 20005 202 / 371-8013 stephen.bruce@prodigy.net
Barry D. Roseman McNamara, Roseman, Martinez & Kazmierski, LLP 1640 East 18th Avenue Denver, CO 80218-1202 303 / 333-8700 bdr@18thavelaw.com
Attorneys for Plaintiffs

Table of Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Plaintiffs’ Response to Defendants’ Statement of Undisputed Material Facts . . . . . . . . . . . . . . . 2
Plaintiffs’ Statement of Additional Disputed or Undisputed Material Facts . . . . . . . . . . . . . . . . 13
Magistrate Judge Shaffer’s April 28, 2008 Minute Order Bifurcating Discovery Has Prevented Plaintiffs From Developing Additional Facts to Present in Opposition . . . . . . . . . . . 20
I. Summary Judgment Cannot Be Granted If Genuine Issues of Material Fact Exist. . . . . 22
II. El Paso Is Not Entitled to Summary Judgment on Plaintiffs’ ADEA Claim. . . . . . . . . . 24
A. Congress Intended for ADEA Sections 4(a) and 4(i) to Protect Employees Against Age Discrimination “in All Forms of Employee Benefits”; the Objective Is for ADEA Section 4(a) to Protect Employees Against Age Discrimination in Pension Benefits If Section 4(i) Is “Inapplicable.” . . . . . . . . . . . . . . . . . . . . . 24
B. Plaintiffs’ Claim that the Duration of Wear-Away Is “Because of Age” Should Proceed Under Both the Disparate-Treatment and Disparate-Impact Theories of Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
1. Older Employees Are Subject to Disparate Treatment Under El Paso’s Wear-Away Design. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2. El Paso’s Wear-Away Design Has a Disparate Impact on Older Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
C. El Paso Cannot Contend that Older Employees “Did Not Experience a Wear-Away” by Changing to a Definition of “Wear-Away” that Ignores this Court’s Rulings, the Prior Testimony of El Paso’s Declarants, and the Complaint .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
D. El Paso’s “Equal Benefits” Defense Is an Unpled Affirmative Defense that Is Inconsistent with Its Declarants’ Prior Statements, This Court’s Rulings, and the EEOC’s Regulations on “Benefit Package” Defenses. . . . . . . . 42
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
i

TABLE OF AUTHORITIES FEDERAL CASES
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (10th Cir. 1998) ...................................... 22 Agostini v. Felton, 521 U.S. 203 (1997) ......................................................................... 41 Amara v. Cigna, 534 F. Supp. 2d 288 (D.Conn. 2008), aff’d, 2009 WL 3199061
(2d Cir. Oct. 6, 2009) .................................................................................................. 1 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................... 22 Baker v. Ogden Services Corp., 1996 WL 15490 (10th Cir. 1996) ................................ 35 Bryson v. Gonzales, 534 F.3d 1282 (10th Cir. 2008) ..................................................... 32 Bullington v. United Air Lines, 186 F.3d 1301 (10th Cir. 1999) ............................... 38-39 Carpenter v. Boeing Co., 456 F.3d 1183 (10th Cir. 2006) .............................................. 38 Carr v. Morgan County Sch. District RE-3, 2007 WL 2022055 (D.Colo. 2007) ........... 32 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................... 22 Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984) ............... 43 Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513 (10th Cir. 1994) ........ 22 Cross Country Land Services v. PB Network Services, 2006 WL 1028790
(D.Colo. 2006) ............................................................................................................ 41 Daubert v. v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) ............................... 23 Defreitas v. Horizon Investment Mgmnt., 577 F.3d 1151 (10th Cir. 2009) .................... 22 Engers v. AT&T, 2007 WL 958472 (D.N.J. 2007) ................................................ 2, 26, 29 Evans v. McDonald’s Corp., 936 F.2d 1087 (10th Cir. 1991) ......................................... 32 Freeman v. White, 2006 WL 2793139 (D.Colo. 2006) ................................................... 32 George v. Duke Power, 560 F. Supp. 2d 444 (D.S.C. 2008) ..................................... 29-30
ii

Griggs v. Duke Power, 401 U.S. 424 (1971) .................................................................. 36 Gross v. FBL Finance Services, 129 S. Ct. 2343 (June 18, 2009) .............................. 1, 33 Hackworth v. Progressive Casualty Insurance Co., 468 F.3d 722 (10th Cir. 2007) ...... 20 Hayes v. Douglas Dynamics, 8 F.3d 88 (1st Cir. 1993) .................................................. 23 Hazelwood School District v. United States, 433 U.S. 299 (1977) ................................ 35 Hazen Paper v. Biggins, 507 U.S. 604 (1993) .................................................... 33, 36, 39 Hurlic v. Southern Calif. Gas Co., 539 F.3d 1024 (9th Cir. 2008) ........................ 1, 27-28 Jenkins v. Wood, 81 F.3d 988 (10th Cir. 1996) .............................................................. 23 Kentucky Retirement Systems v. EEOC, 128 S. Ct. 2361 (2008) .................................... 38 Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) .................................................... 23 Marcus v. McCollum, 394 F.3d 813 (10th Cir. 2004) ..................................................... 22 Meacham v. Knolls Atomic Power Laboratories, 128 S. Ct. 2395 (2008) ..................... 42 Natural Wealth Real Estate, Inc. v. Cohen, 2008 WL 511761 (D.Colo. 2008) .............. 21 Pippin v. Burlington Resources Oil & Gas, 440 F.3d 1186 (10th Cir. 2006) ................. 37 Price v. Western Resources, Inc., 232 F.3d 779 (10th Cir. 2000) ............................. 21, 24 Progressive Northwestern Insurance v. Weed Warrior Services, 588 F.
Supp. 2d 1281 (D.N.M. 2008) .................................................................................. 41 Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158 (1989) ................. 24 Roemer v. Public Serv. Co., 911 F. Supp. 464 (D.Colo. 1996) ...................................... 35 Smith v. City of Jackson, 544 U.S. 228 (2005) .................................................... 25, 36-37 Spulak v. K Mart, 894 F.2d 1150 (10th Cir. 1990) .......................................................... 33 Stahl v. Bd. of County Comm’rs, 101 Fed. Appx. 316 (10th Cir. 2004) .......................... 23 Stinnett v. Safeway, 337 F.3d 1213 (10th Cir. 2003) ...................................................... 23
iii

Swenson v. Lincoln County Sch. District No. 2, 260 F. Supp. 2d 1136 (D.Wyo. 2003) .......................................................................................................... 23
United States v. Monsisvais, 946 F.2d 114 (10th Cir. 1991) .......................................... 41 Vaughn v. Air Line Pilots Association, 395 B.R. 520 (E.D.N.Y. 2008) ......................... 30 Yapp v. Union Pacific R.R., 301 F. Supp. 2d 1030 (E.D.Mo. 2004) .............................. 23
FEDERAL STATUTES, REGULATIONS, LEGISLATIVE HISTORY AND RULES
ADEA §4(a), 29 U.S.C. §623(a) .............................................................................. passim ADEA §4(f)(2), 29 U.S.C. §623(f)(2) ................................................................. 24-25, 43 ADEA §4(i), 29 U.S.C. §623(i) ............................................................................... passim ADEA §11(l), 29 U.S.C. §630(l) .................................................................................... 24 ERISA §204(g)(2), 29 U.S.C. §1054(g)(2) ................................................................ 13, 17 ERISA §514, 29 U.S.C. §1144 ....................................................................................... 27 IRC §411(b)(1)(H), 26 U.S.C. §411(b)(1)(H) ................................................................. 29 26 C.F.R. 54.4980F-1 ..................................................................................................... 16 29 C.F.R. 1625.10 ........................................................................................................... 42 29 C.F.R.1625.10(f)(2)(ii) .............................................................................................. 42 H.R. Conf. Rep. 99-1012, 1986 U.S.C.C.A.N. 3868 ................................................ 24, 26 H.R. Rep. 664, 101st Cong., 2d Sess., 1990 WL 200383 (Leg.Hist.) .............................. 25 S. Rep. 263, 101st Cong., 2d Sess., 1990 U.S.C.C.A.N. 1509 ....................................... 25 FRCP 8(a)(2) ................................................................................................................... 31 FRCP 12(b)(6) ................................................................................................................ 27 FRCP 56 ............................................................................................................... 20-23, 34
iv

MISCELLANEOUS 1999 TNT 183-11 (Sept. 21, 1999) ................................................................................. 29 Federal Judicial Center, Reference Manual on Scientific Evidence ................................. 39
v

Introduction The issues in this case are “vitally important” to employees and their families “[g]iven
how profoundly significant retirement plans and planning are to the great majority of Americans.” Amara v. Cigna, 534 F.Supp.2d 288, 295 (D.Conn. 2008), aff’d, 2009 WL 3199061 (2d Cir. Oct. 6, 2009). In the decision granting Plaintiffs’ motion to alter or amend based on the Ledbetter Act, this Court invited El Paso to file “a new motion for summary judgment” on the ADEA claim “[i]n particular” addressing “the relatively recent arguments and authority” in Hurlic v. Southern Calif. Gas Co., 539 F.3d 1024 (9th Cir. 2008), and Gross v. FBL Fin. Servs., 129 S.Ct. 2343 (2009). Dkt. #359 at 7. El Paso’s renewed motion exceeds the Court’s invitation by relying on statements of fact about which there are genuine issues and statements of fact about which discovery has not been completed under Magistrate Judge Shaffer’s April 28, 2008 Minute Order, which bifurcated discovery in this case. 1
The introduction to El Paso’s memorandum states that El Paso “[a]ssum[es] everything Plaintiffs assert is true.” Br. at 3. But El Paso’s statement of facts and argument do the opposite, even asserting that “the members of the putative collection [sic] action in general, and the named Plaintiffs in particular, did not experience a wear-away.” Br. at 22, and see Br. at 19-22. As this Court stated in its first decision: “for some workers, overall benefits did not grow until the cash balance benefits caught up to and exceeded the ‘frozen’ benefits under the old formula. This period is commonly referred to as a ‘wear away’.” Slip Op. (dkt.#213) at 3.
At trial, the Plaintiffs will show through lay and expert testimony and documentary evidence that older workers experience much longer periods of wear-away than younger workers.
1 This opposition does not address El Paso’s request that the Court reconsider its ruling on the Ledbetter Act. Br. at 31-32. The deadline for a Rule 59 motion was September 11, 2009.

In those periods, the cash balance pay and interest credits do not result in an increase to their normal retirement benefits, or their early retirement benefits. 2009 WL 2766718, *4.
The practice that leads to the wear-away periods is a particular type of transition design, called a “greater of” approach with opening account balances. Plaintiffs will show that El Paso’s consultants told it that this approach would lead to long wear-away periods for older employees. El Paso was also told that a cash balance conversion could be designed with no wear-aways by using an “A + B” approach in which the cash balance pay and interest credits always add to the participant’s previously-earned benefits. But El Paso chose the approach with the long wearaway periods for older employees.
At this stage, the only way that El Paso could obtain summary judgment would be to accept the facts in the light most favorable to the Plaintiffs and contend that there is a gap between ADEA §§4(a) and 4(i) in which the Plaintiffs’ disparate treatment and disparate impact claims disappear based on a holding that their claims are “not regulated” under §4(i)’s rule against the cessation of accruals because of age, but nevertheless precluded under §4(a) because the claims “relate to” the subject matter of §4(i) in a broad sense. Engers v. AT&T, 2007 WL 958472 (D.N.J. 2007), holds that this construction is inconsistent with the statutory text, and if there is any ambiguity, that it is inconsistent with the statutory objective to end age discrimination in all forms of employee benefits. Plaintiffs’ Response to Defendants’ Statement of Undisputed Material Facts
Plaintiffs do not dispute Para. Nos. 3, 6, 9, 14-16, 23, and 25-26 in Defendants’ Statement
2

of Undisputed Material Facts. But Plaintiffs dispute Para. Nos. 1-2, 4, 7-8, 10-13, 17-22 and 24.2
1. Prior to January 1, 1997, El Paso maintained a defined benefit pension plan that utilized a final average pay formula to calculate retirement benefits. Benefits under the final average pay formula generally increased along with Participants’ years of service and the average of their final years of pay. (January 21, 2009 Order, Docket No. 311, p.2; Complaint ¶¶15-16).
2. El Paso converted its pension plan effective January 1, 1997 to a cash balance plan (“Amended Plan”). (Exhibit A, Preamble, p. 1 & §4.1; March 19, 2008 Order, Docket No. 213, p.11).
Pls’ Response: El Paso’s statements ignore the 1,952 employees of the former Sonat and
Coastal companies which El Paso acquired in 1999 and 2001. Ex. 7 at 2. Those employees
outnumber the 952 El Paso/EPNG employees by a ratio of 2 to 1. Id. Before January 1, 2000 (for
Sonat) and March 31, 2001 (for Coastal), the Sonat and Coastal employees participated in
pension plans that provided benefits based on final average pay. After those dates, they were
converted to the cash balance formula, with long periods of wear-away for older, longer-service
employees. Ex. 1 (Poulin Rpt.) at 3.
4. Pay credits increase with age. Thus, the older an employee is, the higher the percentage of pay that is credited to his or her cash balance account each quarter. (Exhibit A, §4.1(a)(ii)).
Pls’ Response: The cash balance pay credits are based on percentages of pay that range
from 4% to 7%. The percentage of pay in a given year is determined by the employee’s combined
age and service. Ex. 1 (Poulin Rpt.) at 5 and 8; Defs. Ex. A at §4.1(a)(ii). There is a cap of 7% of
salary when a participant’s combined age and service equals 65 or more points, e.g., age 45 with
20 years of service. The percentage of pay is not higher after that. Id. During the period of time
2 As provided under this Court’s rules, Plaintiffs set forth Additional Disputed or Undisputed Material Facts below.
3

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when an employee is under a “wear-away,” the pay credits assigned to the employee’s account do
not add to his or her retirement benefits. Ex. 2 (Poulin Reb.) at 1.
5. The Amended Plan provided for a five-year transition period for Participants who were active on the date of the conversion to a cash balance formula. (January 21, 2009 Order, Docket No. 311, p. 2). At the start of the transition period (January 1, 1997), these Participants were given a cash balance account with a balance equivalent to their benefit under the final average pay formula. (Exhibit A, § 4.1(a)).
Pls’ Response: Plaintiffs’ actuarial expert has shown that the cash balance accounts that
participants were given were not “equivalent to their benefit under the final average pay
formula.” Ex. 1 (Poulin Rpt.) at 13-16. The January 1, 1997 date in the statement again ignores
the January 1, 2000 and March 31, 2001 start dates of the transition periods for the 1,952 former
Sonat and Coastal employees.
7. Generally, the value of a Participant’s pension benefits under the final average pay formula is referred to as his or her “Minimum Benefit.” (Exhibit A, § 4.1(b); Exhibit B, Bardwell Dep., p. 39:3-10). Like all pension benefits, the value of a Participant’s Minimum Benefit can be calculated as an “accrued benefit” (i.e., a benefit that a Participant would receive at “normal retirement age” or age 65) or as an immediately payable benefit that a Participant would receive if he or she retired at any given time prior to normal retirement age.
Pls’ Response: Defendants’ statement of facts consistently confuses present values with
the monthly amount of a participant’s pension benefit and consistently miscites Dr. Bardwell’s
testimony as support. See Ex. 2 (Poulin Reb.) at 8-11 and Defs. Ex. B (Bardwell Dep.) at 39
(“expressed as an age 65 annuity”). Under Section 4.1(b) of the Plan, the monthly amount of a
participant’s pension benefits earned before December 31, 2001 is called the “Minimum
Benefit.” Defs. Ex. A. Under Section 4.1(c) of the Plan, as amended and restated effective
January 1, 2001, the comparable frozen monthly benefits for former Coastal and Sonat
employees are called “Transition Benefits.” Ex. 3. Even when the monthly amount of a
4

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retirement benefit is “frozen,” the present value will increase as an individual approaches age 55. This happens whether or not the individual is employed. To illustrate, named Plaintiff Alice Ballesteros earned a retirement benefit of $1,612 per month through 12/31/2001. Even though her monthly benefit is frozen, any actuary or economist will say that the present value of the frozen benefit increases as she draws closer to age 55–whether or not she is employed. Ex. 2 (Poulin Reb.) at 8-9. In both situations and at any age, the $1,612 per month remains fixed and frozen. Plaintiffs also dispute the statement that “[l]ike all pension benefits,” benefits are payable before age 65, and the implication that they are payable on equivalent terms at different ages before age 65. El Paso’s prior benefit formula had favorable terms for retirement between ages 55 and 65, involving 3% or 4% per year reductions (or no reduction under the “Rule of 85"), which actuaries describe as “subsidized.” Ex. 1 (Poulin Rpt.) at 3. By contrast, El Paso’s prior formula had unfavorable terms for retirements before age 55. Reductions for “immediately payable” annuities before age 55 were based on an 8% interest rate, which amounted to a penalty. Poulin Suppl. Decl. at 4.
8. At the end of the five-year transition period–December 31, 2001–each Participant’s “accrued benefit” under the final average pay formula was frozen and thus stopped increasing in value. (Exhibit A, §§ 3.1, 4.1(b)(i); Exhibit B, Bardwell Dep., p. 84:15-18; January 21, 2009 Order, Docket No. 311, p. 2; Complaint, ¶¶ 20-21; Declaration of Kevin R. Minor (“Minor Decl.”), ¶ 6, attached as Exhibit C). As discussed below, however, this is not true of the benefit that a Participant actually receives under the final average pay formula if the Participant retires before reaching (1) age 65 or (2) age 60 plus 30 years of service. Moreover, after the end of the transition period, benefits under the cash balance formula continued to accumulate. (Exhibit C, Minor. See Exhibit A, § 3.1.
Pls’ Response: El Paso’s statement confuses the “accrued benefit” with its present value and again miscites Dr. Bardwell’s testimony as support. See Resp. to Stmt. No. 7 and Defs. Ex. B (Bardwell Dep.) at 84 (the benefit is “expressed as an age 65 annuity”). El Paso’s statement also
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ignores the different transition dates and the different early retirement rules that apply to the former Sonat and Coastal employees. See Ex. 1 (Poulin Rpt.) at 3-4. The monthly amount of participants’ “accrued benefits” were “frozen” on December 31, 2001 for former EPNG employees, and on December 31, 2004 and March 31, 2006, respectively, for former Sonat and Coastal employees. The present value of the frozen benefits increases as individuals draw closer to retirement, whether or not they are employed. Those increases in present value are what Defendants’ statistical expert, Dr. Ward, characterizes as “growth” analogous to “pay increases.” Ex. 7 (Ward Rpt.) at 8. Mr. Poulin’s rebuttal shows that this is a mistaken analogy. Ex. 2 (Poulin Reb.) at 9.
10. On average, the higher a Participant’s age at the end of the transition period, the higher his or her Minimum Benefit under the final average pay formula was at the end of the transition period. (Exhibit B, Bardwell Dep., pp. 63:3-5, 91:17-20, 97:6-17). During the five-year transition period, older employees’ Minimum Benefits under the final average pay formula grew much faster than their cash balance benefits did. (Exhibit B, Bardwell Dep., pp. 118:23-25, 119:1-3). Thus, for many older Participants, their Minimum Benefits payable at age 65 (i.e., their “accrued benefits”) exceeded their cash balance benefits at the end of the five-year transition period. (Exhibit B, Bardwell Dep., p. 118:7-12; Exhibit C, Minor Decl., ¶ 8).
Pls’ Response: Plaintiffs’ actuarial expert, Claude Poulin, found that “one” of four reasons why older employees’ minimum benefits exceed their cash balance benefits is because their benefits grew faster than their cash balance accounts during the five-year transition periods. Mr. Poulin identifies three other reasons why older employees’ minimum benefits exceed their cash balance benefits. Ex. 1 (Poulin Rpt.) at 14-15. Defendants’ actuarial expert, Ian Altman, agrees with Mr. Poulin’s analysis–as does Dr. Bardwell. Ex. 8 (Altman Dep.) at 94-96; Defs. Ex. B (Bardwell Dep.) at 91. Defendants’ statement of facts does not reference either Mr. Altman’s testimony or Mr. Poulin’s analysis.
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11. According to Plaintiffs, certain Participants, including themselves, experienced a wear-away period because their Minimum Benefits, payable at age 65, were greater than the value of the cash balance accounts at the end of the transition period. (Complaint, ¶¶ 32-35; Ex. B, Bardwell Dep., pp. 49: 8-20, 73:14-18, 75:2-5, 14-17). Plaintiffs allege that during this so-called wear-away period, the value of their pension benefits did not increase even though their cash balance accounts did increase. (Complaint, ¶¶ 32-35).
Pls’ Response: El Paso again confuses participants’ retirement benefits with present
values. The Complaint alleges that “Defendant El Paso used a method that froze the retirement
benefits that the named Plaintiffs and other class members will receive for many years at the
previously accumulated levels as of December 31, 2001.” Dkt.#1 at 8-9. Dr. Bardwell testified
that “if the employee is experiencing wear-away, then their cash balance plan benefit is lower
than the frozen or minimum benefit.” Defs. Ex. B at 75.
12. Importantly, Plaintiffs’ own expert concedes that Plaintiffs’ wear-away theory relies only on the value of the Minimum Benefit payable at normal retirement age (i.e., age 65), or the so-called “accrued benefit.” (Exhibit B, Bardwell Dep., 49:13-20 (conceding that wear-away as defined by Plaintiffs pertains only to the benefit payable at age 65), 84:15-22 (conceding that he does not know whether the benefit payable at any point in time other than at age 65 continues to grow or not), 118:1-6 (conceding that his calculations pertained only to the benefit payable at age 65)).
Pls’ Response: El Paso again miscites Dr. Bardwell’s testimony. He did not testify that
“Plaintiffs’ wear-away theory relies only on the value” of the age 65 benefit. See Defs. Ex. B at
49, 84 and 118. Plaintiffs’ actuarial expert, Mr. Poulin, has found that the reductions for early
retirement under the prior plan formulas are always less than under the cash balance formula. Ex.
1 (Poulin Rpt.) at 12-14. Because of this, Mr. Poulin finds that when a participant’s “accrued
benefit” at age 65 is under a period of wear-away, the early retirement benefit at age 55 or more
is always under a wear-away. Poulin Suppl. Decl. at 3.
13. However, under the terms of the Amended Plan, the actual value of the Minimum Benefit to which a Participant is entitled at any given point in time grows, even
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during a so-called “wear-away” period, as the individual ages towards (1) “normal retirement age” (age 65) or (2) age 60 plus 30 years of service. (Exhibit A, §§ 4.1(b)(i) (defining the Minimum Benefit by applying the Plan‘s final average pay provisions through December 31, 2001); 4.3(b); 4.5(b)).
Pls’ Response: El Paso again confuses the Minimum Benefit with present value (calling it the “actual value” here), and ignores the different transition dates and early retirement rules for former Sonat and Coastal employees. El Paso’s statement is also based on a mistaken view of how present values increase. If a participant has a frozen benefit and is subject to a 3 or 4% per year reduction for retirement at age 55 (which is considered “subsidized” from an actuarial standpoint), deferring retirement to age 56, 57, etc. can actually decrease the present value of the frozen benefit. Poulin Suppl. Decl. at 3-4. El Paso’s statement about the “actual value” further ignores the fact that the “actual values” to which it refers have not been available to most older, longer service employees because El Paso’s Plan has limited distributions of Minimum Benefits in non-annuity form. El Paso’s Plan only offered lump sum distributions when the cash account was less than $25,000 for participants who terminated before January 1, 2000 or less than $100,000 for participants who terminate on or after January 1, 2000. Ex. 3 at §5.1(d).3
17. Thus, reduction factors decrease each year that a Participant gets closer to either (1) age 65 or (2) age 60 plus 30 years of service.(Declaration of Michael Ward (“Ward Decl.”), ¶ 13, attached as Exhibit D). Therefore, the reduction factors that applied on December 31, 2001 (the end of the transition period) are larger than the reduction factors that apply after the close of the transition period as the employee ages toward (1) age 65 or (2) age 60 plus 30 years of service. (Id.). As the reduction factors decrease over time, the actual value of the benefit payable on any given day increases. (Id.).
Pls’ Response: El Paso’s statement confuses decreases in “reduction factors” for early retirement between ages 55 and 65 with increases in the “actual value” of a participant’s
3 The $100,000 limitation was removed for terminations after January 1, 2008. Ex. 9. 8

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retirement benefits. Decreases in reductions for early retirement are due to participants deferring
retirement past age 55. As stated in response to Statement No. 13, deferring retirement to ages
56, 57, etc., can actually decrease the present value of the frozen benefit. Poulin Suppl. Decl. at
3-4. For “immediate annuities” before age 55, El Paso applies reduction factors based on an 8%
interest rate. Ex. 10 (Minor Dep.) at 102. Those reduction factors are in excess of a reasonable
actuarial equivalent and amount to penalties. See Poulin Suppl. Decl. at 4. Not applying those
reduction factors because a participant waits until age 55 to commence a frozen monthly benefit
does not constitute an increase in the actual value of the participant’s benefits, but is a rational
avoidance of a penalty.
18. A Participant who is entitled to a Minimum Benefit and who elects Early Retirement is also eligible for a Supplemental Early Retirement Benefit. (Ex. A, § 4.3(a) (“In addition, if the Participant‘s Early Retirement Benefit is based on his or her Minimum Benefit..., the Participant shall also receive the supplemental benefit described in section 4.3(c).”)). Therefore, Participants whose Minimum Benefits exceed their cash balance benefits (including all three Plaintiffs) receive an additional benefit that other employees do not. Therefore, under the terms of the Plan, the value of the Minimum Benefit grows every year as a Participant ages up to age 65 or age 60 plus 30 years of service.
Pls’ Response: A Supplemental Early Retirement Benefit (“SERB”) was part of the prior Plan for employees in the EPNG group who retired after age 55 and elected an annuity. Defs. Ex.
A at §4.3(a)(iv) and (c). The SERB is a frozen benefit payable only from the early retirement date
until the participant attains age 62; it does not “grow every year.” Id. The SERB is also not
conditional on whether a participant’s Minimum Benefit “exceeds their cash balance benefits.”
Former Sonat or Coastal employees were not offered the SERB. Id.
19. Moreover, the Amended Plan itself recognizes that the value of the Minimum Benefit that is actually payable to a Participant changes over time, even after the end of the transition period. Specifically, the Amended Plan guarantees that a Participant’s actual pension benefit will be the greater of their cash balance benefit “or the Minimum Benefit payable as of such date.” (Exhibit A, §4.1 (emph. added); see also Complaint ¶21).
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Pls’ Response: No provision in the Amended Plan “recognizes that the value of the Minimum Benefit that is actually payable to a Participant changes over time.” Id. Section 4.1 of the Amended Plan compares the Minimum Benefit in the form of a monthly retirement benefit with the cash balance benefit in the same monthly form. Defs. Ex. A.
20. El Paso retained Michael Ward, Ph.D., to test statistically whether Participants’ benefits actually do grow as the Amended Plan dictates they should. Dr. Ward‘s expert qualifications are contained in his contemporaneously filed Declaration. (Exhibit D, Ward Decl., Ex. 1).
Pls’ Response: Dr. Ward’s report and declaration offer opinions about “growth” that require the expertise of an actuary, pension consultant, or economist with expertise in pension provisions. Dr. Ward is not qualified to testify as such and does not rely on anyone with those qualifications. El Paso’s designated actuarial expert is Ian Altman. Ex. 13 (Altman Rpt.) at 1. Dr. Ward did not rely on Mr. Altman’s actuarial expertise. Mr. Altman’s expert report and deposition testimony are not cited anywhere in his report (or in El Paso’s statement of undisputed facts).
The “growth” constructs that Dr. Ward offers are not grounded in any accepted analysis in a recognized field of expertise. Dr. Bardwell testified that Dr. Ward’s assertions about growth were not based on any statistical expertise. Defs. Ex. B at 85, 129; see also Ex. 16 (Bardwell Dep.) at 124-125; 130-33. Plaintiff’s actuarial expert, Mr. Poulin, detailed the actuarial faults in Dr. Ward’s growth analysis. Ex. 2 (Poulin Reb.) at 7-11. At his deposition, Mr. Altman testified that he did not know whether Dr. Ward’s “growth” analysis conforms with any actuarial or accounting principles. Ex. 8 (Altman Dep.) at 151-52, 154-59. Dr. Ward admitted that he made no inquiries about how accountants or actuaries would treat his analysis of “growth” in present values. Ex. 14 (Ward Dep). at 74-75. By contrast, Plaintiffs’ statistical expert relied on the
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analyses of wear-aways developed by the Plaintiffs’ actuarial expert, Mr. Poulin, for the
statistical analysis he set forth in his report. See Ex. 15 (Bardwell Rpt.) at 3 and Ex. 16 (Bardwell
Dep.) at 113-114 and 145-146.
21. Dr. Ward’s calculations prove several unassailable facts, all of which are consistent with the terms of the plan document itself as described above.
a. First, for employees who are under 65 years old, the actual value of the Minimum Benefit that is payable at any given point in time grows as the employees age toward 65 years of age or 60 years of age plus 30 years of service. (Exhibit D, Ward Decl., ¶ 10).
b. Second, over 99% of El Paso’s employees retire before reaching age 65. (Exhibit D, Ward Decl., ¶ 16).
c. Third, older workers’ (i.e., over 40) Minimum Benefits grew more than twice as much as younger workers’ (i.e., under 40) benefits under the cash balance formula, even after the close of the transition period. (Exhibit D, Ward Decl., ¶ 20). Specifically, Dr. Ward calculated that the actual, immediately payable value of older workers’ Minimum Benefits grew by $16,081, on average, per year of service following the end of the transition period. By contrast, younger workers’ benefits under the cash balance formula grew by only $6,681, on average, per year of service following the end of the transition period. (Exhibit D, Ward Decl., ¶¶18, 19).
Pls’ Response: Dr. Ward’s analysis is built on confusing present values with the monthly
amount of the Minimum Benefit, with the present values distorted by fundamental
misunderstandings of early retirement benefits and benefits payable prior to age 55. Minimum
Benefits under the prior formulas do not “grow” for older or younger employees after the
transition periods end. Mr. Poulin explains that comparing increases in actuarial value of a fixed
future benefit to “pay increases,” as Dr. Ward did, is a false analogy. Ex. 2 (Poulin Reb.) at 9.
In an effort to identify any form of “growth” to analogize to “pay increases,” Dr. Ward
counts decreases in reduction factors for early retirement as “growth” in participants’ Minimum
Benefits. Ex. 7 (Ward Rpt.) at 4-5 and 8. Dr. Ward’s assertion that the present value grows “at
any given point in time” between ages 55 and age 65 (or age 60 with 30 years of service), is
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incorrect for the reasons explained in the Response to Defendants’ Statement No. 17. Dr. Ward was unaware that the reduction factors for El Paso’s so-called “immediate annuities” before age 55 were based on an 8% interest rate, which is actuarially excessive. Id. at 66-69, 71, 95-96 (“You’re talking to the wrong guy about this. I’m taking whatever number is in the book”). Not applying excessive reduction factors because a participant waits until age 55 to commence a frozen benefit does not constitute “growth” in the individual’s benefits and is not analogous to “cash compensation” or a “pay increase” under any accepted actuarial or economic analysis.
With respect to No. 21.c., Dr. Ward’s report admits that he applied different methods to calculate his “growth” in benefits based on the ages of the employees. As Dr. Bardwell pointed out, Dr. Ward calculated “the average annual dollar increase of the cash balance benefit for younger workers” and compared this to the “increase in early retirement benefit for the same period for workers age 40 or over.” Ex. 17 (Bardwell Reb.) at 2 and Ex. 7 (Ward Rpt.) at ¶¶3839. This is an “apples to oranges” comparison. At his deposition, Dr. Ward conceded that he performed “two different calculations” for older and younger workers. Ex. 14 at 21-23.
When Dr. Ward was asked about Plaintiffs’ allegations concerning the effect of the wearaway design on older workers, he admitted that Plaintiffs’ allegations are true: “It is definitely true that most of these older workers have an age 65 benefit which is in excess of the cash balance benefit. And if that constitutes a wear-away period, then fine, that’s what happens.” Ex. 14 (Ward Dep.) at 84. Dr. Ward also agreed that “in periods of time when the minimum benefit is higher than the cash balance” the cash balance pay and interest credits “have no effect” “because the [minimum] benefit they receive is higher.” Id. at 86-87 and 114.
Plaintiffs do not dispute No. 21.b.
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22. Dr. Bardwell testified that he does not dispute the accuracy of Dr. Ward’s calculations. (Exhibit B, Bardwell Dep., p. 85:4-2, 120:6-22, 128: 11-23, 129: 2-21).
Pls’ Response: Dr. Bardwell and Mr. Poulin both testified there was not sufficiently detailed information, backup data, or calculations to replicate Dr. Ward’s numbers. Ex. 17 (Bardwell Reb.) at 1-2 and Ex. 2 (Poulin Reb.) at 7-8.
24. Looking at the benefits actually received by all three named Plaintiffs (as opposed to their hypothetical “accrued benefits” payable at age 65), the actual, payable value of both their cash balance benefit and their Minimum Benefits continued to grow after the close of the transition period. (Ex. C, Minor Decl., ¶ 9). In fact, for all three Plaintiffs, the immediate value of each Plaintiff’s Minimum Benefit grew faster than the immediate value of his or her cash balance benefit from the time the transition period closed until the time he or she actually started to receive retirement benefits. (Id.)
Pls’ Response: El Paso again confuses the frozen “accrued benefit” with present values (which it calls “the actual, payable value” or “the immediate value”), that have been distorted by a faulty analysis of reductions for early retirement, here going so far as to call the employee’s “accrued benefit” “hypothetical.” El Paso ignores the mandated protection of early retirement features under ERISA §204(g)(2) and the fact that the reductions for “immediate annuities” prior to age 55 are penalties. In this statement, El Paso relies on Kevin Minor who is a fact witness, not an expert. Mr. Minor previously submitted a declaration admitting that the periods of wear-aways exist and that they “depend[] heavily on the combination of that participant’s age and years of service.” Pls. Stmt. Addt’l Facts ¶18. Plaintiffs’ Statement of Additional Disputed or Undisputed Material Facts
1. An August 14, 1996 presentation by Mercer for the El Paso Pension Committee stated that the “Impact on Employees” of the cash balance changes would be a “36% average reduction in pension benefits at age 60.” Ex. 18 at Mercer 679. Plaintiffs’ actuarial and statistical
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experts, Mr. Poulin and Dr. Bardwell, calculate that the reductions in future benefits were actually even more than this. Based on individual-by-individual calculations, their reports detail how future benefits are reduced on average by 75% after ten years for the EPNG, Sonat and Coastal employees. Ex. 1 (Poulin Rpt.) at 11-12 and Ex. 15 (Bardwell Rpt.) at 12-14.
2. Mr. Poulin found that the reductions in future benefits are due to both the periods of wear-away and the poorer benefit formula that was adopted with the cash balance design. Ex. 1 (Poulin Rpt.) at 8-11. The initial cash balance accounts that El Paso established effective January 1, 1997 for EPNG employees, and at later dates for former Sonat and Coastal employees, were at levels well below the full value of the older, longer-service employees’ accumulated benefits under the prior plans. By contrast, the initial cash balance accounts for younger employees were close to the full value of their benefits. Ex. 1 (Poulin Rpt.) at 14-15.
3. During a 5-year transition period ending on December 31, 2001, EPNG employees continued to earn benefits under both the new cash balance formula and the old final average pay formula. 2009 WL 151532, *1. Former Sonat and Coastal employees continued to earn benefits under their plans’ final average pay formulas in five-year periods ending on December 31, 2004 and March 31, 2006, respectively. Ex. 1 (Poulin Rpt.) at 3-4.
4. Employees who terminated before these transition periods ended received the “greater of” the two benefits as annuities. Defs. Ex. A at §§4.1 and 5.1. Lump sum distributions were offered, but employees who terminated employment before January 1, 2000 were ineligible for lump sums if their cash balance account exceeded $25,000. After January 1, 2000, this limit was raised to $100,000. Ex. 3 at §5.1(d). The limit was eliminated after January 1, 2008. Ex. 9.
5. After the transition period ended on December 31, 2001 for EPNG employees
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(and on December 31, 2004 and March 31, 2006 for former Sonat and Coastal employees), retirees continued to receive the “greater of” the two benefits in annuity form or a lump sum (unless their cash balance account exceeded $100,000). However, after the transition periods ended, the final average pay benefit was “frozen.” Benefits continued to increase thereafter only under the new cash balance formula.
6. For older, longer-service workers, “one effect” of the transition design was that their overall monthly benefits did not grow until the cash balance benefits caught up to and exceeded the “frozen” benefits due under the old formula. 2009 WL 151532, *1. These “de facto benefits freezes” are called wear-away periods. 2008 WL 762456, *1 and 8. The pay credits assigned during the wear-away periods do not increase the employee’s retirement benefit. 2009 WL 2766718, *4.
7. According to Plaintiffs’ actuarial expert, Mr. Poulin, the practice that leads to these periods of wear-away is El Paso’s use of a “greater of” approach based on opening account balances that are not equal to the frozen benefits that employees earned under the prior formulas. Ex. 1 (Poulin Rpt.) at 13-14.
8. Wear-aways are not an inherent part of cash balance conversions. A cash balance conversion can easily be designed with an “A+B” approach in which the prior benefits are frozen and the cash balance benefits always add to those benefits. Ex. 1 (Poulin Rpt.) at 13-14. Congress has, in fact, prohibited wear-aways for all cash balance conversions after June 29, 2005. P.L. 109-80, §701(a)(1). El Paso was told that it had the option of using an “A+B” transition as early as November 3, 1995 and was also told that “[a]ll participants would receive additional benefit accruals under this option.” Ex. 6 at EPTO-14245.
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9. Mr. Poulin’s report details four reasons why the duration of wear-away under El
Paso’s plan design is longer for older employees:
(1) El Paso excluded the value of early retirement benefits from the opening account balances. The value of early retirement benefits is greater for older employees because they are close to early retirement eligibility.
(2) El Paso applied a pre-retirement mortality discount in establishing the opening account balances. This discounts the opening accounts by a larger amount for older employees.
(3) Participants’ cash balance accounts did not include the benefits earned under the prior formula during the 5-year transition period. That shortfall was generally larger for older workers because an improvement in final average salary improves benefits for all past years of service and older employees generally have the more past service.
(4) After the opening accounts were set up, interest rates fell below the rates used to establish the opening account balances, which has a greater impact on the retirement benefits provided to older employees by the accounts than it does for younger employees.
Ex. 1 (Poulin Rpt.) at 14-15.
10. Mr. Poulin developed Excel spreadsheets to compute the expected duration of
wear-away under El Paso’s transition design. Ex. 1 (Poulin Rpt.) at 14-15. Mr. Poulin’s analysis
of wear-aways conforms with the definition of “wear-away” the Treasury Department uses and
Mr. Poulin applied the same actuarial assumptions that the Treasury Department specifies for determining the expected duration of wear-aways.4 Mr. Poulin found that for older participants,
the wear-away period often exceeds 10 years. For example, he found that the wear-away period
for Alice Ballesteros, who was age 50 at the end of the five-year transition period, was 11-12
years. Id. at 16-17.
4 See 26 C.F.R. 54.4980F-1, Q&A-11(a)(4)(ii)(A) and (C). 16

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11. To respond to this Court’s January 2009 decision, Mr. Poulin also prepared an Excel spreadsheet to show how for “two employees, one younger and one older, with the same accrued frozen benefit under the old plan and the same salary,” the wear-away period is longer for the older employee, without even taking into account the correlation between age and the amount of the frozen benefit. Suppl. Decl. at 2-3. For instance, for two employees with 10 years of service and the same frozen benefit of $735 (based on a salary of $70,000), Mr. Poulin’s spreadsheet shows that an employee who was age 30 on 12/31/01 will have a 1.3 year period of wear-away compared with a 5.3 year period for an employee who is age 55. Id.
12. It is undisputed that ERISA §204(g)(2) protects the early retirement features that are attached to a frozen accrued benefit against reduction by plan amendment. Ex. 4 and 5. Mr. Poulin’s report describes the reduction factors for early retirement that were offered under the prior plan formulas for EPNG, Sonat and Coastal employees. Ex. 1 (Poulin Rpt.) at 3-4. Mr. Poulin found that the reduction factors for early retirement under the prior formulas were generally 20% at age 55, or 28% for former Coastal and Sonat employees, compared to a 53% reduction under the cash balance design. Ex. 1 (Poulin Rpt.) at 12-13. Because the reductions in the cash balance benefits for early retirement always exceed the reductions under the prior plan, Mr. Poulin finds that any periods of wear-away that exist in terms of the age 65 benefits will always exist for retirements at age 55 and over. Poulin Suppl. Decl. at 3.
13. Dr. Robert Bardwell, the Plaintiffs’ statistical expert, developed calculators to apply Mr. Poulin’s Excel spreadsheets to data for each participant. Ex. 15 (Bardwell Rpt.) at 2-3. Dr. Bardwell found that the mean duration of the wear-aways for participants over 40 is 8.2 years compared with 1.9 years for participants under 40. This represents an adverse impact ratio of
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421%. Id. at 6. Dr. Bardwell also applied Mr. Poulin’s Excel spreadsheets to calculate damages from El Paso’s wear-away design and found that over 90 percent of damages are borne by employees age 40 and older. Ex. 15 (Bardwell Rpt.) at 14-15. Dr. Bardwell found that the statistical significance of the effect of age on the duration of wear-away is 35 standard deviations, which rules out the possibility that the impact is due to chance. Ex. 15 (Bardwell Rpt.) at 11-12.
14. El Paso knew from 1996 forward that the older employees would be subject to long periods of wear-away. Michael Crumley who was an accountant in El Paso’s benefits department at the time, declares that during internal meetings in July-August of 1996 that he attended, the term “wear-away” was not discussed. But it was discussed that after the 5-year transition period, employees who were currently over age 40 would earn nothing more in retirement benefits. Kevin Minor of the Mercer consulting firm told members of the Executive Committee and benefit department managers, including Joel Richards, Brent Austin, Barbara Williams, and Linda Camarillo, that this would be the case and provided graphs to illustrate. Decl. of Michael Crumley at 2.
15. The graphs that Mr. Minor prepared show that the benefits provided under the cash balance formula were not expected to exceed those provided under the frozen prior formula for 11-12 years after the end of the 5-year transition period for employees who were ages 43 and 47 at the end of 1996, and not expected to exceed the frozen benefits for employees who were ages 54 and 58 until after they reached age 65. Ex. 18 at Mercer 669-72.
16. In a September 2001 PowerPoint presentation for EPNG employees, three slides that El Paso’s “actuarial firm put together” illustrate 9-11 year periods of wear-away for employees who were ages 50 and 55 on 12/31/2001. Ex. 21 at 33-37.
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17. Calculations that El Paso’s actuaries performed in June 2004 related to the December 31, 2004 conclusion of the transition period for Sonat showed 15-year periods of wear-away for employees ages 48 and 50 as of December 31, 2004. Ex. 22.
18. In opposing Plaintiffs’ motion for approval of the ADEA collective action, El Paso submitted a declaration from Mr. Minor which admits that “Some employees included in the proposed class did, in fact, experience the wear-away described in Plaintiffs’ Complaint.” Mr. Minor further admitted that “Whether a particular employee in the proposed class experienced wear-away...depends heavily on the combination of that participant’s age and years of service.” Dkt.#130-2 at 4 and 6.
19. Handwritten notes of an October 25, 1999 conference call with Mercer’s consultants show that El Paso knew that there were issues concerning the “age discrimination” laws. The notes refer to El Paso’s “wear-away transition” and recognize that an EEOC task force is studying the “age discrimination issue in wear away.” Ex. 19.
20. This Court has found that “the wear away effect was apparent as early as 1999, as was the alleged correlation to older employees with larger pension balances under the old formula.” 2009 WL 2766718 at *3. The Court found that a “bar graph [in a September 15, 1999 Compensation Statement prepared by El Paso] clearly shows the wear-away effect, as it shows both the frozen old benefit and the growing cash balance plan benefit at several intervals. In the example provided, ... the cash balance benefit does not exceed the participant’s frozen previous benefit even at age 65.” 2009 WL 151532 at *7 and Ex. 20 at P47.
21. In an April 18, 2007 review of a pending Application for Determination over the tax-qualification of this plan, the IRS objected to how El Paso restructured the Supplemental
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Early Retirement Benefit (“SERB”) for EPNG employees with the cash balance changes on the basis of “age discrimination” and required El Paso to “convert the Supplemental Benefit to a formula that does not discriminate on account of age.” Ex. 11 at 2 and Ex. 12.
22. Valuation data for the years from 1998 through 2007, which Mercer only produced on October 6, 2009 pursuant to an October 15, 2008 Order by Magistrate Judge Shaffer, shows that El Paso totally reversed the Plan’s cost structure after the end of the transition periods so that the costs of older employees’ benefits are now only one-third of the costs for younger employees’ benefits. Poulin Suppl. Decl. at 5. For example, the annual costs for named Plaintiffs Gary Muckelroy and Alice Ballesteros in 2002 were only $148.80 and $821.99, whereas the costs for them were $4,445.86 and $3,086.14 in 2001. Poulin Suppl. Decl. at 4. By comparison, for younger employees with comparable salaries to Mr. Muckelroy’s $103,000 salary or Ms. Ballesteros’s $63,000, the annual costs are in the $1,500-3,000 range in both 2001 and 2002 (and succeeding years). Id. Magistrate Judge Shaffer’s April 28, 2008 Minute Order Bifurcating Discovery Has Prevented Plaintiffs From Developing Additional Facts to Present in Opposition.
Rule 56(f) provides that when a party shows specific reasons why it cannot present facts to justify its opposition, the Court “may: (1) deny the motion [for summary judgment]; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order.” “The crux of Rule 56(f) is that summary judgment should be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.” Hackworth v. Progressive Cas. Ins. Co., 468 F.3d 722, 732 (10th Cir. 2007). A Rule 56(f) affidavit is “entitled to liberal treatment” and must
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“identify the probable facts not available” and “what steps have been taken to obtain those facts” and “explain how additional time will enable [the non-movant] to rebut the movant’s allegations of no genuine issue of fact.”Natural Wealth Real Estate, Inc. v. Cohen, 2008 WL 511761, *2-3 (D.Colo. Feb. 21, 2008). “[E]xclusive control of such information” by the party moving for summary judgment “is a factor weighing heavily in favor of relief under Rule 56(f).” Price v. Western Resources, Inc., 232 F.3d 779, 783 (10th Cir. 2000).
Here, Plaintiffs respectfully submit that this Court should deny El Paso’s motion or order a continuance to allow Plaintiffs to complete discovery under Rule 56(f) based on the facts set forth in the accompanying Rule 56(f) Affidavit. By Minute Order entered on April 28, 2008 (dkt. #228), Magistrate Judge Shaffer bifurcated discovery in this case and thereby deferred a large portion of the Plaintiffs’ discovery until after rulings on the then-pending dispositive motions. The Minute Order adopted a “Joint Proposal on Bifurcating Discovery” that Magistrate Judge Shaffer directed the parties to prepare. The Joint Proposal on Bifurcating Discovery identifies executives and other benefits managers that Plaintiffs intend to depose. Other than one consultant from Mercer (Mr. Minor), Plaintiffs have not deposed anyone who would have known about the periods of wear-away and discrimination based on age. Rule 56(f) Aff. of Stephen Bruce, at 2-3.
The bifurcated discovery may provide additional evidence of disparate treatment and knowledge of the disparate impact. As mentioned, Michael Crumley, a former accountant in El Paso’s benefits division, declares that Joel Richards, Barbara Williams, Linda Camarillo, Armida Solis and others within El Paso knew that the wear-aways would affect older employees. Decl. of Michael Crumley at 2. There was also a conference call with Mercer consultants in October 1999 in which both the Plan’s wear-away design and the EEOC’s interest in whether wear-aways
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discriminated on the basis of age were discussed. Ex. 19. Plaintiffs have been unable to depose the individuals involved because of the discovery bifurcation.5 I. Summary Judgment Cannot Be Granted If Genuine Issues of Material Fact Exist.
Pursuant to Federal Rule 56(c), summary judgment can only be granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FRCP 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). “The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets that burden, the other party must demonstrate a “genuine issue for trial on a material matter.” Concrete Works, 36 F.3d at 1518; accord, Defreitas v. Horizon Investment Mgmnt., 577 F.3d 1151, 1161-62 (10th Cir. 2009).
In ruling on a motion for summary judgment, the district court’s “role is simply to determine whether the evidence proffered by plaintiff would be sufficient, if believed by the ultimate fact-finder, to sustain the claim.” Marcus v. McCollum, 394 F.3d 813, 820 (10th Cir.
5 El Paso has also not produced all of its communications with the IRS about “age discrimination” under this Plan. See Pls. Ex. 11, at 2 (April 18, 2007 letter from IRS requesting that El Paso “convert the Supplemental Benefit to a formula that does not discriminate on account of age”) and Ex. 12.
A continuance or denial is also in order because Plaintiffs’ renewed request for approval of the ADEA notice and consent form has not been resolved. See dkt. #313, 326. Issuing the ADEA notice to more than 2,000 current and former El Paso employees will allow Plaintiffs to obtain more information about El Paso’s knowledge and intent.
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2004). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge considering a summary judgment motion.” Stahl v. Bd. of County Comm’rs, 101 Fed. Appx. 316, 320 (10th Cir. 2004).
In determining whether there are genuine issues of material fact, the district court must “examine the factual record in the light most favorable to the party opposing summary judgment.” Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996). “All inferences arising from the record ... must be drawn and indulged in favor of the party opposing summary judgment.” Stinnett v. Safeway, 337 F.3d 1213, 1216 (10th Cir. 2003). “In discrimination cases, where intent and credibility issues inhere, summary judgment standards should be applied strenuously.” Swenson v. Lincoln County Sch. Dist. No. 2, 260 F. Supp. 2d 1136, 1142 (D.Wyo. 2003).
Expert testimony submitted with a motion for summary judgment is subject to the same standard. No genuine issue of material fact can exist when the proposed testimony is viewed in the light most favorable to the non-moving party. See Hayes v. Douglas Dynamics, 8 F.3d 88, 92 (1st Cir. 1993) (“As with all other evidence submitted on a motion for summary judgment, expert affidavits must be reviewed in light of F.R.Civ.P. 56”). If there are substantial issues of admissibility under Daubert v. v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), or Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), expert testimony cannot form the basis for a grant of summary judgment.6
Finally, “Rule 56(f) allows a court to stay or deny a summary judgment motion to permit
6 In this instance, the report of Defendants’ statistical expert is constructed on measures of “growth” that are not grounded in statistics or accepted actuarial or economic models. See Pls. Resp. to Defs. Stmnt. No. 20. In Yapp v. Union Pacific R.R., 301 F.Supp.2d 1030, 1037 (E.D.Mo. 2004), Dr. Ward’s report was stricken because it was based on surveys that were not scientifically reliable and that were shaped by defense counsel.
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further discovery if the nonmovant states by affidavit that it lacks facts necessary to oppose the motion.” Price, supra, 232 F.3d at 783. II. El Paso Is Not Entitled to Summary Judgment on Plaintiffs’ ADEA Claim.
A. Congress Intended for ADEA Sections 4(a) and 4(i) to Protect Employees Against Age Discrimination “in All Forms of Employee Benefits”; the Objective Is for ADEA Section 4(a) to Protect Employees Against Age Discrimination in Pension Benefits If Section 4(i) Is “Inapplicable.”
Section 4(a) of the ADEA, 29 U.S.C. §623(a), provides that it “shall be unlawful for an employer”:
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; or (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age. In 1986, Congress added ADEA §4(i) to “prevent the reduction or cessation of benefit accruals on account of the attainment of age.” H.R. Conf. Rep. 99-1012, at 378-79, reprinted in 1986 U.S.C.C.A.N. 3868, 4023-24. In 1990, Congress amended ADEA §4(f)(2) and added ADEA §11(l) in response to the Supreme Court’s decision in Public Employees Ret. Sys. of Ohio v. Betts, 492 U.S. 158 (1989), which questioned whether the protections in §4(a) applied to employee benefit plans. Id. at 177. The amended §4(f)(2) codified the EEOC’s equal cost/equal benefit regulations on employee plans. Subsection 11(l) also defined the phrase “compensation, terms, conditions, or privileges of employment” in §4(a) to specifically “encompass[] all employee benefits, including such benefits provided pursuant to a bona fide employee benefit plan.” 29 U.S.C. §630(l). Congress thereby made it “unmistakably clear” that §4(a) protects
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employees against “age discrimination in all forms of employee benefits.” S.Rep. No. 263, 1990 U.S.C.C.A.N. 1509, 1521-22. The Committee reports also describe the interaction between the amended protections against age discrimination in employee benefits in §§4(a) and 4(f)(2) and the narrower protection in §4(i):
In circumstances in which the provisions of section 4(i) are inapplicable, claims of discriminatory accruals or pension credits in defined benefit and defined contribution pension plans shall continue to be resolved under section 4(f)(2) as modified by these amendments. H.R. Rep. 664, 101st Cong., 2d Sess., at 35-36, 1990 WL 200383 (Leg.Hist.); S. Rep. 263, 101st Cong., 2d Sess., 1990 U.S.C.C.A.N. 1509, 1525. In 2005, the Supreme Court ruled in Smith v. City of Jackson, 544 U.S. 228 (2005), that the ADEA authorizes disparate impact claims under §4(a). The Supreme Court recognized that the EEOC’s regulations “have consistently interpreted the ADEA to authorize relief on a disparate impact theory” and held that the ADEA “focuses on the effects of the action on the employee rather than the motivation of the employer.” Id. at 236 and 239. El Paso’s renewed motion for summary judgment maintains that the Plaintiffs’ claim that the wear-aways of retirement benefits are because of age “can only be brought under section 4(i) of the ADEA..., not section 4(a).” El Paso next argues that section 4(i) “concerns itself only with the rate of ‘inputs’ to a pension plan (such as the pay credits provided under the cash balance formula) rather than a plan’s ‘outputs’” and therefore “does not regulate” the outputs. Br. at 3 and 19; see also id. at 16-18, 27. Following this logic, El Paso submits that Plaintiffs do not have a claim under either ADEA §§4(a) or 4(i). El Paso’s syllogism suffers from a fundamental flaw: The 1990 legislation was enacted to
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make clear that §4(a) of the ADEA prohibits age discrimination “in all forms of employee benefits.” Thus, the statutory objective is to regulate discrimination in employee benefits under either ADEA §4(a) or §4(i). There is a fundamental flaw in the logic that if periods of wearaways are “not regulate[d]” by §4(i), they must be exempt from protection against age discrimination under §4(a). In Engers v. AT&T, 2007 WL 958472 (D.N.J. 2007), Judge Chesler rejected the position that El Paso espouses here:
[T]he language of §4(i) implies exactly the opposite of what Defendants contend. The provision only has usefulness when benefit accrual issues arise under other parts of §4. Section 4(i) states that compliance under the subsection, §4(i), constitutes compliance with benefit accrual requirements under the entire section, §4. If benefit accrual requirements cannot be at issue outside of §4(i), this is surplusage. It is only meaningful if, contrary to Defendants’ argument, benefit accrual issues can arise under subsections other than §4(i). Id. at *2-3. The legislative history to the 1986 enactment of §4(i) makes clear that Congress’ intent was to provide for continued accruals to older workers after age 65, not to open a gap between §4(a) and §4(i) in which well-founded claims disappear. See H.R. Conf. Rep. 99-1012, at 37679, 1986 U.S.C.C.A.N. 3868, 4021-24. There was never a proposal before Congress to require continued accruals for employees over age 65, but simultaneously permit employers to adopt plan designs that provide zero additional retirement income to employees between the ages of 40 and 65. As the 1990 amendments make clear, Congress intended to protect employees over age 40 against age discrimination in all forms of employee benefits. El Paso’s argument that any cause of action under §4(a) is precluded by §4(i) (Br. at 3, 14-16) is also at odds with this Court’s initial ruling on §4(a) in March 2007. There, the Court rejected Plaintiffs’ claim that the rate of benefit accruals resulting from the cash balance credits
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decreases with age in violation of §4(i), but recognized that there are discrimination issues under ADEA §4(a) “if the company knows that the vast majority of older workers will never cash in these [cash balance credits] but will rather elect the (now-frozen) benefits they had earned under the old plan.” 2007 WL 891378, *2.
To contend that even “if the company knows” this, it does not violate the ADEA, El Paso turns to the Ninth Circuit decision in Hurlic v. Southern California Gas Co., 539 F.3d 1024, 1036-37 (2008). The Hurlic plaintiffs brought an age discrimination claim about periods of wearaway not under §§4(a) or 4(i) of the ADEA but under the California Fair Employment and Housing Act (“FEHA”). Southern California Gas contended that ERISA §514, 29 U.S.C. §1144, preempted the plaintiffs’ state law claim under FEHA and obtained a dismissal of the FEHA claim under FRCP 12(b)(6) (with no opinion). On appeal, the Ninth Circuit recognized that while ERISA §514's preemption of State laws is broad, there is an exception for State “antidiscrimination laws” that are a part of a “joint state/federal enforcement scheme.” Id. at 1035. To decide whether the savings clause applied, the Ninth Circuit first determined that the ADEA and FEHA “both ... contain broad prohibitions against age discrimination.” But the panel then found that “unlike FEHA, the ADEA contains specific provisions relating to pension plans” in §4(i). Id. at 636. The court observed that those specific provisions provide that “compliance” with the specific requirements “shall constitute compliance with the requirements of [ADEA §4] relating to benefit accrual under [an employee pension benefit] plan.” Id. (citing ADEA §4(i)(4)).
The Hurlic panel next determined that the “wear-away” claim that the plaintiffs were bringing under FEHA “relate[d] to benefit accrual because it challenges the fact that benefits do not increase for some period of time.” The court concluded that because the claim relates to
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benefit accrual, it “must be brought under ADEA §4(i),” but that “FEHA mirrors ADEA §4(a), not ADEA §4(i).” At the same time it faulted the plaintiffs for not bringing a claim under ADEA §4(i), the court incongruously stated that “the wear-away claim is not cognizable under ADEA §4(i).” 539 F.3d at 1037. The court did not explain this dicta, other than to say that this subsection provides that “a plan only engages in prohibited discrimination if it violates §4(i)(1)(A).” The court concluded that “Because FEHA prohibits practices which would be lawful under the ADEA, Plaintiffs’ FEHA claim is preempted.” Id.
Although the reasoning in Hurlic is intricate, Plaintiffs submit that it is inapplicable and wrong: Hurlic is inapplicable because here, Plaintiffs pled both §§ 4(a) and 4(i) and are presenting actuarial, statistical and documentary evidence of the age discrimination. Second, Hurlic clearly rewrites the statutory text about “compliance” with §4(i) and makes it into a question of whether a practice relates to benefit accruals in a broad sense. The Supreme Court and this Circuit recognize that “[i]f “relate to” were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes” it “would never run its course, for “[r]eally, universally, relations stop nowhere.” As a result, the statutory “objectives” must be used “as a guide to the scope” of the law Congress intended to affect. New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995); Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 989-90 (10th Cir. 1999).
In concluding that the wear-away practice relates to benefit accruals, the Hurlic panel never addressed the statutory objectives and did not even address whether there was “compliance” with the §4(i) requirements relating to benefit accrual. Instead, it incongruously found that the practice of wear-aways is “not cognizable” under §4(i). 539 F.3d at 1037. Finding
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that a claim is “not cognizable” cannot be equated to finding that a practice is in “compliance.” See Engers, supra, 2007 WL 958472, *3 (“decision that Plaintiffs lack standing to pursue a claim under §4(i) does not constitute a determination of Defendants’ compliance with that provision”).
The Treasury Department, which has the responsibility for interpreting the ERISA and Internal Revenue Code counterparts to ADEA §4(i), appears to take the position that wear-aways can be addressed under the Internal Revenue Code counterpart to §4(i). As early as 1999, the IRS’s General Counsel testified before the Senate Labor Committee that in applying Internal Revenue Code §411(b)(1)(H), which parallels ADEA §4(i), “we will consider the impact of the wearaway period, as it affects employees of various ages.” 1999 TNT 183-11 (Sept. 21, 1999) at [25], available on Lexis-Nexis. A form letter that the IRS has sent to cash balance plan sponsors also states the IRS’s “serious concerns” about whether periods of “wear-away” violate IRC §411(b)(1)(H). Ex. 23.7
To the extent that a wear-away claim does not relate to the regulation of benefit accruals in §4(i), but relates to whether the company knows that older employees will not “cash in” the cash balance pay credits, this practice should be addressed under ADEA §4(a)–as this Court stated in its March 2007 decision. As Engers found, Congress “clearly contemplated” that there are “circumstances in which claims of discriminatory pension accruals will be resolved outside of §4(i)” because §4(i) is “inapplicable.” 2007 WL 958472, *3. George v. Duke Power, 560 F.Supp.2d 444, 462-63 (D.S.C. 2008), likewise held that the plaintiffs did not state a claim for
7 The Treasury Department has applied IRC §411(b)(1)(H) to El Paso’s Plan. In connection with how El Paso restructured its Supplemental Early Retirement Benefit after the end of the transition period, Treasury directed El Paso to “convert the Supplemental Benefit to a formula that does not discriminate on account of age.” Pls. Addit. Stmt. No. 21.
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disparate treatment from a “wear-away” effect under ADEA §4(i). However, the district court held that the plaintiffs sufficiently stated a claim for disparate impact under §4(a): “Plaintiffs have identified the specific employment practice being challenged, i.e., Duke’s conversion of its traditional pension plan to a cash balance plan and the ‘wear away’ effect caused by the manner in which the conversion was implemented. Plaintiffs have alleged that employees over the age of 40 disproportionately suffer as a result of the wear away period because older employees must endure longer periods during which no additional benefits accrue.” Id. at 463-464.8
Plaintiffs submit that, to adhere to the statutory text and objectives, §4(a) and §4(i) must be construed in a manner that does not create a gap in the protection of older employees against discrimination “in all forms of employee benefits.” Consistent with this Court’s distinction of §4(i) from whether the company knows that older employees will not “cash in” the credits and with George’s distinction of disparate impact claims,9 this Court should hold that §4(i) is “inapplicable” and that §4(a) applies. Alternatively, consistent with the IRS, this Court could hold that §4(i) is applicable to the practice of wear-aways in age 65 benefits. Any other construction in which a clearly well-founded claim of age discrimination is not cognizable under the ADEA fails to enforce the statutory text and the objective of the 1990 amendments to protect older employees against discrimination in employee benefits.
8 Vaughn v. Air Line Pilots Ass’n, 395 B.R. 520, 542 n. 14 (E.D.N.Y. 2008), similarly holds that a disparate impact claim can only proceed under the general prohibition of §4 because §4(i) pertains to discrimination in the terms of a plan.
9 2007 WL 891378, *1-3. In this Court’s decision on the Ledbetter Act, this Court also ruled that “[b]ecause [Mr. Tomlinson’s] pay credit allegedly did not result in any increase to his pension benefit during the wearaway period, it would appear that this is an application of an allegedly discriminatory practice affecting Plaintiff.” 2009 WL 2766718, *4.
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In terms of the no-genuine-issues element of the summary judgment standard, El Paso’s contention that it complies with the ADEA ignores the fact that the declaration of Michael Crumley and the reports of Plaintiffs’ actuarial and statistical experts show that El Paso’s plan design knowingly adopted a wear-away approach that made the pay credits for older employees into fictitious notations. See Pls. Addit. Facts ¶¶6-22. Mercer’s actuarial valuation data for 19982007 shows that the Plan’s costs have been totally reversed so that the costs for older employees are now only one-third of the costs for younger employees. Id. at 22. As this Court said in its first decision, “if the company knows that the vast majority of older workers will never cash in these [cash balance credits]” there are genuine issues about compliance with the ADEA.
As an alternative to the argument that neither §4(a) nor §4(i) regulates wear-aways, El Paso contends that “Plaintiffs’ claim fails because it is not pled under section 4(i) of the ADEA.” Br. at 3, 16. El Paso did not raise this defense in its Answer to the Complaint or four previous dispositive motions, and it should therefore be waived. See Dkt. #10, 128, 220, and 232. Moreover, the statutory language does not support any such distinction. The statute says that “compliance with the requirements of this subsection with respect to an employee pension benefit plan shall constitute compliance with the requirements of this section relating to benefit accrual under such plan.” 29 U.S.C. §623(i)(4). Under this language, an age discrimination claim can be brought under §4(a) of the ADEA, but an employer can potentially defend by showing compliance with §4(i). The statute does not contain the pleading requirement that El Paso seeks.
El Paso’s effort to establish a technical pleading requirement (Br. at 3, 16) is also at odds with F.R.C.P. 8(a)(2): “The purpose of fact pleading, as provided by Fed.R.Civ.P. 8(a)(2), is to give the defendant fair notice of the claims against him without requiring the plaintiff to have
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every legal theory or fact developed in detail before the complaint is filed and the parties have opportunity for discovery.” Evans v. McDonald’s Corp., 936 F.2d 1087, 1091 (10th Cir. 1991); Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008). Here, there is no question that El Paso had fair notice of the claim that its wear-aways discriminate based on age since it has filed four dispositive motions to defeat it.10
B. Plaintiffs’ Claim that the Duration of Wear-Away Is “Because of Age” Should Proceed Under Both the Disparate-Treatment and Disparate-Impact Theories of Discrimination.
Plaintiffs’ age discrimination claim should be allowed to proceed under both the disparate treatment and the disparate impact theories of discrimination. Plaintiffs’ actuarial and statistical experts have prepared reports showing that under El Paso’s transition design age is an actuarially and statistically inextricable factor in the duration of the wear-away periods. See Ex. 1 (Poulin Rpt.) at 13-17 and Ex. 15 (Bardwell Rpt.) at 5-12. Mr. Crumley’s declaration and the evidence obtained in discovery further show that El Paso’s decision-makers knew that being over 40 was a determinative factor in the duration of the periods without additional benefits and intended that result. See ¶¶14-22 supra.
1. Older Employees Are Subject to Disparate Treatment Under El Paso’s Wear-Away Design.
Plaintiffs do not contend that age is the only factor in determining the duration of wearaway: As Mr. Poulin finds, it is a necessary condition that a participant have a previously earned benefit that may be ‘worn away’ by such a design. Ex. 1 (Poulin Rpt.) at 14. However, Plaintiffs
10 If a technical amendment to the pleadings were required, “[c]ourts may treat new claims raised in a plaintiff’s opposition to summary judgment as a motion to amend the complaint pursuant to FRCP 15.” Freeman v. White, 2006 WL 2793139, *17 (D.Colo. 2006); Carr v. Morgan County Sch. Dist. RE-3, 2007 WL 2022055, *12 (D.Colo. 2007).
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contend that age is a determinative factor: Mr. Poulin shows the direct effects that age has in each of four factors that contribute to wear-aways. Id. at 14-15. As Dr. Bardwell explains, “[a]ge impacts the length of the wear-away period both directly through structural features of the plans and indirectly, by means of its strong relationship with all the other factors that directly impact the length of the wear-away period.” Ex. 15 (Bardwell Rpt.) at 3. Age and the other factors that bear a strong relationship to age (the frozen benefit and years of service) were known by El Paso in advance so that the effect of the wear-away design on older employees was predictable before adoption and implementation of the design. Id. at 5.
With respect to disparate treatment, the Supreme Court’s decision in Gross v. FBL Fin. Svcs.,129 S.Ct. 2343 (June 18, 2009), may at first blush appear to heighten the evidentiary requirements. However, Gross adopted the evidentiary standard from Hazen Paper v. Biggins, 507 U.S. 604 (1993), and expressly states that the Court’s intent is not to create a “heightened evidentiary requirement.” Id. at 2349 and 2351 n.4. Hazen Paper holds that “a disparate treatment claim cannot succeed unless the employee’s protected trait actually played a role in that process and had a determinative influence on the outcome.” Id. at 2349, quoting 507 U.S. at 610. Hazen Paper made clear that this does not mean that age has to be the “predominant” factor in the discrimination. Indeed, Hazen Paper criticized the Tenth Circuit’s 1990 decision in Spulak v. K Mart, 894 F.2d 1150, because it “insisted that age be the ‘predominant,’ rather than simply a determinative, factor.” 507 U.S. at 616 and 617.
In response to El Paso’s first motion to dismiss, this Court concluded that “it is far from clear that the hypothetical payments made to older employees’ cash balance accounts (or ‘pay credits’ attributed to these accounts) should qualify as a ‘cost incurred’ under §623(f), especially
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if the company knows that the vast majority of older workers will never cash in these ‘payments’ but will rather elect the (now-frozen) benefits they had earned under the old plan.” 2007 WL 891378, *2 (emph. added). The discovery obtained to date, combined with the analyses of Plaintiffs’ actuarial and statistical experts, shows that El Paso knew that the vast majority of its workers over age 40 would never cash in the cash balance pay credits but would end their employment with the frozen benefits they had earned under the old plan. Michael Crumley, a former accountant in El Paso’s benefits department, has declared based on meetings he attended that the benefit managers and members of the executive committee who were charged with making the decisions about the cash balance design knew in 1996 that employees over age 40 would not earn additional retirement benefits after the end of the 5-year transition period. Decl. of Michael Crumley at 2-3. Contemporaneous graphs from the meetings he describes show this effect. Ex. 18 at Mercer 669-72. And the Mercer consultant who made the presentations to El Paso admitted in his May 2007 Declaration to this Court that “Whether a particular employee in the proposed class experienced wear-away...depends heavily on the combination of that participant’s age and years of service.” Dkt.#130-2 at 4 and 6 (emph. added).11
In the January 2009 decision on the timeliness of the ADEA charge, this Court stated that there is “no evidence to show that two employees, one younger and one older, with the same accrued frozen benefit under the old plan and the same salary, would suffer different wear-away periods.” 2009 WL 151532 at *5. To address this, Plaintiffs’ actuarial expert prepared an Excel spreadsheet which shows that for “two employees, one younger and one older, with the same
11 Under Rule 56(f), it should be presumed that discovery will enable Plaintiffs to obtain more evidence from the other persons who attended these meetings.
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accrued frozen benefit under the old plan and the same salary,” the wear-away period is longer for the older employee. Suppl. Decl. of Claude Poulin at 2-3.
The case law shows that statistical analysis supports not only disparate impact claims but also disparate treatment claims. See Hazelwood School District v. United States, 433 U.S. 299, 307-8 (1977) (“Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination”); Baker v. Ogden Servs. Corp., 1996 WL 15490, *4 (10th Cir. 1996); Roemer v. Public Serv. Co., 911 F. Supp. 464, 467 (D.Colo. 1996). In this instance, Dr. Bardwell calculated the duration of the wear-aways for 2,464 older and younger individuals and concludes that “the age of employees has a strong impact on the existence and length of wear-away.” Dr. Bardwell further finds that the “relationship between age” and other variables, including years of service and the frozen benefit, “means that each of these variables will mediate the impact of age, tending to act as a proxy for age in their impact on wear-away.” Ex. 15 (Bardwell Rpt.) at 9. As indicated, these are not predictions based on an unknown causal chain as in an epidemiological study. As Dr. Bardwell observed, before El Paso adopted this design, “an analyst with the details of the plan and a few basic assumptions could have estimated the impacts on El Paso employees and recognized that the impact is borne primarily by older workers.” Ex. 15 (Bardwell Rpt.) at 5. Thus, if El Paso did its due diligence (as Mr. Crumley’s declaration and Mercer’s 1996 graphs attest that it did), El Paso knew that the result of its design was long periods of wear-away for older employees. 12
In its motion, El Paso mischaracterizes what Hazen Paper and its progeny say about years
12 In fact, documents produced by El Paso show that even before the 5-year transition periods for the EPNG and Sonat employees ended, Mercer was predicting 9-15 year periods of wear-away for older employees. Exs. 21 (2001 PowerPoint) and 22 (2004 Sonat calcs).
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of service being “analytically distinct” from age. See Br. at 24-26. Hazen Paper holds that:
When the employer’s decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is.... Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily ‘age based.’
507 U.S. at 611 (emph. added). The Court went on to explain:
We do not preclude the possibility that an employer who targets employees with a particular pension status on the assumption that these employees are likely to be older thereby engages in age discrimination. Pension status may be a proxy for age, not in the sense that the ADEA makes the two factors equivalent ..., but in the sense that the employer may suppose a correlation between the two factors and act accordingly.
507 U.S. at 612-13. Here, El Paso had two basic approaches from which to choose in converting
to a cash balance plan: a “greater of” approach with opening account balances that would
produce wear-aways or an “A + B” approach that would not. Mr. Poulin’s actuarial analysis and
Dr. Bardwell’s statistical results show that age was an inextricable part of the transition design
that El Paso chose. As Mr. Crumley declares, El Paso knew that this meant that almost all of its
older employees would not earn additional benefits for the rest of their careers with El Paso.
2. El Paso’s Wear-Away Design Has a Disparate Impact on Older Employees.
Even if the Court did not agree that Plaintiffs’ evidence establishes a prima facie case of
disparate treatment, Plaintiffs’ charge of discrimination in the duration of the wear-aways should
proceed under the disparate impact theory. In Griggs v. Duke Power, 401 U.S. 424, 432-33
(1971), race discrimination was the reasonably foreseeable result of Duke Power’s use of
standardized test scores and a high school diploma requirement as job qualifications–even though
race was not expressly used in the hiring process. In Smith v. City of Jackson, supra, 544 U.S. at
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235-36, the Supreme Court held that the ADEA, like Title VII, prohibits practices that “adversely affect” an employees’ status because of age. Following Griggs, the Court observed that:
In disparate impact cases, the allegedly ‘otherwise prohibited’ activity is not [expressly] based on age.... [C]laims that stress ‘disparate impact’ ... involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another. Id. at 239; accord Pippin v. Burlington Resources Oil & Gas, 440 F.3d 1186, 1198 (10th Cir. 2006) (“Smith definitively holds that disparate impact theories of age discrimination are cognizable under ADEA”). Smith v. City of Jackson requires that the plaintiffs identify “the specific...[facially neutral] practice within the pay plan that has an adverse effect on older workers.” 544 U.S. at 241. Here, Plaintiffs’ expert identifies that practice as the “greater of” approach based on opening account balances. Ex. 1 (Poulin Rpt.) at 13-15. As in Griggs, Mr. Poulin has found that the reasonably foreseeable result of this practice was wear-aways of long durations for older employees, often lasting over 10 years. Dr. Bardwell finds that age plays a determinative role in the duration of the periods of wear-away, not just indirectly, but standing alone. Age played a further role through its collinearity with length of service and the frozen benefit amounts. As Dr. Bardwell observes, age is not merely congruent with those factors, but causally related because “it is impossible for an employee who is age 30 or 40” to have 25 years of service. Ex. 15 (Bardwell Rpt.) at 9 and Ex. 16 (Bardwell Dep.) at 94. To prepare his report, Dr. Bardwell applied Mr. Poulin’s spreadsheets on the duration of wear-away to the entire population of 2,464 participants. The disparity in the duration of wear-
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aways between the over-40 and under-40 group that he found far exceeds the 20% disparity often used to “draw a line” in discrimination cases. Carpenter v. Boeing Co., 456 F.3d 1183, 1202 (10th Cir. 2006); Bullington v. United Air Lines, 186 F.3d 1301, 1312 (10th Cir. 1999). Dr. Bardwell finds that the mean duration of the wear-aways for participants over 40 is 8.2 years compared with 1.9 years for participants under 40. Ex. 15 (Bardwell Rpt.) at 6. This represents an adverse impact ratio of 421%.
Dr. Bardwell’s report also shows that age is a statistically significant factor in the duration of wear-aways when a regression analysis is run. Ex. 15 (Bardwell Rpt.) at 12 (finding 35 standard deviations). The Supreme Court and the Tenth Circuit “recognize[] that a disparity of more than two or three standard deviations in a large sample makes ‘suspect’ the contention that the differential occurs randomly.” Carpenter, supra, 456 F.3d at 1195 (citing Hazelwood Sch. Dist. v. U.S., 433 U.S. 299, 308 n.14 (1977)). Here, the disparity was not 2 or 3, but 35.
El Paso contends that even if this is true, Dr. Bardwell has not shown that age is an “analytically distinct” factor in the duration of wear-aways. Br. at 24-25. 13 However, Dr. Bardwell has shown that when he “controls for” all of the other variables (which is the statistical language for keeping all the factors “analytically distinct”), he continues to find that age is highly significant statistically. Ex. 15 (Bardwell Rpt.) at 11-12; Ex. 16 (Bardwell Dep.) at 101-109. Moreover, the case on which El Paso relies, Hazen Paper, is a “disparate treatment” case.14
13 El Paso’s assertions about Dr. Bardwell’s statistical analysis are not supported by its statistical expert. In his report, El Paso’s statistical expert, Dr. Ward, only performed a single variable “t-test” and did not perform any regression analysis. See Ex. 7 (Ward Rpt.) at 7-8.
14 Kentucky Retirement Sys. v. EEOC, 128 S.Ct. 2361, 2366, 2369-70 (2008), cited on pages 24-25 of El Paso’s brief, is also a “disparate treatment” case.
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When Hazen Paper referred to “analytically distinct” factors in the context of disparate
treatment, the Court distinguished situations in which an “employer may suppose a correlation between the two factors and act accordingly.” 507 U.S. at 612-13.15
In sum, Plaintiffs have presented “statistical data [that is] sufficiently reliable to raise a
genuine issue of material fact regarding the existence of a statistical disparity.” Bullington, supra,
186 F.3d at 1314. None of El Paso’s criticisms “undermine the probativeness of the statistics to
such a degree that no reasonable jury could return a verdict in [Plaintiffs’] favor.”Id. at 1315.
C. El Paso Cannot Contend that Older Employees “Did Not Experience a WearAway” by Changing to a Definition of “Wear-Away” that Ignores this Court’s Rulings, the Prior Testimony of El Paso’s Declarants, and the Complaint.
Changing course from its prior filings where it contended that the employees should have
known about the periods of wear-away, El Paso now contends that older employees “did not
experience a wear-away.” Br. at 22-23. El Paso makes this argument by ignoring the “frozen”
monthly retirement benefits payable at normal retirement age and early retirement age, and
switching to a new definition of the term “wear-away.” El Paso contends that if one was to look
at the older employees’ “frozen” pension benefits from the perspective of actuarial present values
of “immediately payable” annuities, the frozen monthly benefits actually “grow.” See Br. at 19-
22. This argument is built on several fundamental mistakes, most notably, a mistaken use of the
15 Finally, when a regression model is applied to collinear variables, the principles of statistical analysis are the opposite to what El Paso suggests. If “the coefficient on the explanatory variable of concern” is not statistically significant when a collinear variable is included in the regression, the Reference Manual on Scientific Evidence says that it “can be instructive” to “drop[] the second variable from the regression.” Id. at 197 n.47. Here, it was not necessary for Dr. Bardwell to do this because even with the collinearity between age and the frozen benefit, the coefficient for age is highly significant statistically (35 standard deviations ). Ex. 15 (Bardwell Rpt.) at 11-12; Ex. 16 (Bardwell Dep.) at 101-109.
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actuarial and financial principle that the “present value” of a frozen annuity entitlement (e.g., the present value of a frozen $100 per month benefit) generally increases each year up to the date of retirement even though the monthly benefit remains fixed. See p. 4-5, supra. El Paso’s statistical expert, Dr. Ward, would offer a construct to this Court (with no support from El Paso’s actuarial expert) under which the retirement benefits of former El Paso employees “grow” even though they are no longer employed by El Paso. As Mr. Poulin points out, this is analogous to contending that a rule that denied older employees any matching contribution to their 401(k) accounts can be excused by pointing to investment returns on their existing balances. Ex. 2 (Poulin Reb.) at 9.
To support its new argument, El Paso turns to declarations from Dr. Ward and Kevin Minor, the Mercer actuary who advised El Paso on the transition design. However, as Plaintiffs pointed out in their response on the motion to alter or amend (dkt. #330), El Paso’s actuarial expert is Ian Altman, not Mr. Minor.16 Far from being independent, Mr. Minor is a fact witness with an interest in avoiding any ruling that the consulting advice that he and Mercer provided to El Paso discriminated against older employees. Most critically, Mr. Minor’s declaration is inconsistent with the graphs he presented to El Paso in August 1996 which showed lengthy 11-12 year periods of wear-away for employees ages 43 and 47 (as of 1997). Ex. 18 at Mercer 669-72. In an earlier declaration in this case, Mr. Minor admitted that: “Whether a particular employee in the proposed class experienced wear-away...depends heavily on the combination of that participant’s age and years of service.” Dkt.#130-2 at 4 and 6 (emph. added). As for Defendants’
16 Mr. Altman testified that he does not understand what Dr. Ward counts as “growth” or how Dr. Ward’s analysis comports with accepted actuarial or accounting principles. Ex. 8 (Altman Dep.) at 151-52, 154-59.
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statistical expert, Dr. Ward, he admitted at his deposition that “most of these older workers” had experienced wear-aways: “It is definitely true that most of these older workers have an age 65 benefit which is in excess of the cash balance benefit. And if that constitutes a wear-away period, then fine, that’s what happens.” Ex. 14 (Ward Dep.) at 84; and see Pls. Resp. to Stmnt. No. 20.17
El Paso’s newfound assertion that older workers “did not experience a wear-away” is also at odds with this Court’s previous three decisions. In the March 19, 2008 decision, this Court found that “for some workers, overall benefits did not grow until the cash balance benefits caught up to and exceeded the ‘frozen’ benefits under the old formula. This period is commonly referred to as a ‘wear away’.” 2008 WL 762456, *1; see also 2009 WL 151532, *7 (El Paso’s September 1999 “bar graph clearly shows the wear away effect, as it shows both the frozen old benefit and the growing cash balance plan benefit at several intervals”); 2009 WL 2766718 *3 (“the wear away effect was apparent as early as 1999, as was the alleged correlation to older employees with larger pension balances under the old formula”).
Under “the law of the case” doctrine, “a court should not reopen issues decided in earlier stages of the same litigation.” Agostini v. Felton, 521 U.S. 203, 236 (1997); accord United States v. Monsisvais, 946 F.2d 114, 117 (10th Cir. 1991). The prior statements of El Paso’s declarants and El Paso’s own prior statement of undisputed facts also constitute judicial admissions. See Progressive Northwestern Ins. v. Weed Warrior Servs., 588 F.Supp.2d 1281, 1283-84 (D.N.M. 2008) (binding plaintiff to assertion in statement of undisputed facts); Cross Country Land Servs.
17 El Paso’s “statement of undisputed material facts” in support of summary judgment on the SPD claim represents that El Paso “informed Plaintiffs that their accrual of benefits will effectively cease [and] ... provided individual account statements to Plaintiffs specifically showing their projected cash balance accounts trailing their projected Minimum Benefit for a period of many years.” Dkt.#233 at 2-3 (emph. added).
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v. PB Network Servs., 2006 WL 1028790, *1 (D.Colo. 2006). D. El Paso’s “Equal Benefits” Defense Is an Unpled Affirmative Defense that Is Inconsistent with Its Declarants’ Prior Statements, This Court’s Rulings, and the EEOC’s Regulations on “Benefit Package” Defenses. El Paso next contends that it has an “equal benefits” defense. Br. at 30. Meacham v.
Knolls Atomic Power Lab., 128 S.Ct. 2395, 2402 (2008), establishes, however, that an equal cost/equal benefits defense is an “affirmative defense.” El Paso did not affirmatively plead any such defense in its Answer. See Dkt. #125. As support for this unpled defense, El Paso asserts that “during the wear-away period, older employees receive benefits that are at least as great as those received by younger workers.” Br. at 30. This assertion is clearly at odds with this Court’s decisions on the periods of wear-away, as well as the prior statements of El Paso’s supporting declarants. El Paso next asserts that “even if a meaningful wear-away period existed...those who experienced a wear-away have higher benefits than they would have had if there had been no transition period.” Br. at 31. This is not an “equal benefits” defense, nor does it offer any excuse for denying older workers additional benefits for their services after the transition period.
The EEOC’s equal cost/equal benefit regulations at 29 C.F.R. 1625.10 demonstrate that an “equal benefits” defense based on benefits earned in the period before the alleged discrimination occurred will not pass muster. The EEOC’s regulations contain rules on when an employer is permitted to defend an age discrimination claim with a “benefit package” approach. Those regulations specifically provide that “A benefit package approach shall not apply to a retirement or a pension plan.” 29 C.F.R.1625.10(f)(2)(ii). Thus, if the company knows that older employees will not “cash in” their cash balance pay and interest credits because of how the transition to a cash balance plan was structured, the EEOC’s regulations do not allow this to be
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excused by saying that the older employees generally earned more benefits than younger

employees in previous years. Pursuant to the 1990 amendments to the ADEA adopted in

response to the Betts decision, ADEA §4(f)(2) has codified the EEOC regulations on “benefit

packages”, so the deference owed to them exceeds even that mandated by the Supreme Court in

Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

Conclusion

For the foregoing reasons, Plaintiffs respectfully request that this Court deny Defendants’

renewed motion for summary judgment. Even if the Court does not agree that Plaintiffs’ expert

reports and evidence are dispositive, there are genuine issues of fact with respect to disparate

treatment and disparate impact that must be resolved after discovery is complete.

Dated: November 2, 2009

Respectfully submitted,

s/ Stephen R. Bruce Stephen R. Bruce Allison C. Pienta 805 15th St., NW, Suite 210 Washington, D.C. 20005 202/371-8013 stephen.bruce@prodigy.net

s/ Barry D. Roseman Barry D. Roseman McNamara, Roseman, Martinez & Kazmierski, LLP 1640 East 18th Avenue Denver, CO 80218-1202 303/333-8700 bdr@18thavelaw.com

Attorneys for Plaintiffs

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Accompanying Filings:
Rule 56(f) Affidavit of Stephen R. Bruce.
Supplemental Declaration of Claude Poulin, F.S.A., M.A.A.A., E.A.
Declaration of Michael A. Crumley.
Exhibits:
1. Expert Report of Claude Poulin, F.S.A. 2. Rebuttal Report of Claude Poulin, F.S.A. 3. Excerpts from Plan document, as amended and restated as of Jan. 1, 2001 4. Sept. 3, 1997 email on early retirement subsidy (Defs. Dep. Ex. 21) 5. Legal Issues for Cash Balance Plans (Pls. Dep. Ex. 29) 6. Nov. 3, 1995 letter from Mercer (EPTO-14243-46) 7. Expert Report of Michael Ward 8. Extracts from Deposition of Ian Altman 9. Email on 2008 amendment to $100,000 limit for lump sum distributions. 10. Extracts from Deposition of Kevin Minor 11. IRS correspondence on Supplemental Early Retirement Benefit 12. Aug. 18, 2009 Notice on change to Supplemental Early Retirement Benefit 13. Expert Report of Ian Altman 14. Extracts from Deposition of Michael Ward 15. Expert Report of Robert Bardwell 16. Extracts from Deposition of Robert Bardwell 17. Rebuttal Report of Robert Bardwell 18. Aug. 14, 1996 Pension Committee Presentation with graphs (Pls. Dep. Ex. 21) 19. Handwritten notes from Oct. 25, 1999 conference call (Pls. Dep. Ex. 32) 20. Sept. 15, 1999 Compensation Statement (Defs. Dep. Ex. 56) 21. Excerpt from Pension Overview presentation, with speaker’s notes (Pls. Dep. Ex. 37) 22. 2004 Sonat graphs showing wear-away (Pls. Dep. Ex. 26) 23. IRS form letters on wear-away 24. El Paso’s Rule 26(a) Disclosures

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CERTIFICATE OF SERVICE The undersigned hereby certifies that, on this 2nd day of November 2009, a true and
correct copy of (1) Plaintiffs’ Opposition to Defendants’ Renewed Motion for Summary
Judgment on ADEA Claim, with Exhibits 1 to 24, (2) the Declaration of Stephen R. Bruce
Under Rule 56(f), (3) the Supplemental Declaration of Claude Poulin, F.S.A., and (4) the
Declaration of Michael A. Crumley, was served through the CM/ECF electronic filing system on
the following attorneys for the Defendants:
Darren E. Nadel Littler Mendelson, P.C. One Tabor Center 1200 17th Street, Suite 1000 Denver, CO 80202 dnadel@littler.com
Christopher J. Rillo, Esq. Schiff Hardin LLP One Market, Spear Street Tower 32nd Floor San Francisco, CA 94105 crillo@schiffhardin.com
s/ Stephen R. Bruce

 
 Case 1:04-cv-02686-WDM-CBS Document 330 Filed 03/03/2009 USDC Colorado Page 1 of 24
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 04-cv-02686-WDM-CBS
WAYNE TOMLINSON, ALICE BALLESTEROS, GARY MUCKELROY, individually and on behalf of all others similarly situated,
Plaintiffs, v.
EL PASO CORPORATION, and EL PASO PENSION PLAN,
Defendants. __________________________________________________________________
PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO ALTER OR AMEND JUDGMENT ENTERED ON JANUARY 23, 2009
__________________________________________________________________
Stephen R. Bruce Allison C. Pienta 805 15th St., NW, Suite 210 Washington, D.C. 20005 202 / 371-8013 stephen.bruce@prodigy.net
Barry D. Roseman McNamara, Roseman, Martinez & Kazmierski, LLP 1640 East 18th Avenue Denver, CO 80218-1202 303 / 333-8700 bdr@18thavelaw.com
Attorneys for Plaintiffs

Case 1:04-cv-02686-WDM-CBS Document 330 Filed 03/03/2009 USDC Colorado Page 2 of 24
Table of Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. The Lilly Ledbetter Fair Pay Act Covers Discriminatory Practices
Involving Benefits, Including Pension Benefits . . . . . . . . . . . . . . . . . . . . . . 2 II. This Case Is Pending and Therefore Clearly Covered By the
Ledbetter Act’s Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 III. The Legislative Finding About “Pension Distributions” in Section 2(4)
Supports Plaintiffs’ Position Because Mr. Tomlinson Filed His Charge Long Before He Retired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 IV. This Court’s January 21, 2009 Decision Relied on Ledbetter, and Not Morgan, Because Ledbetter Addressed Compensation Practices and Substantially Narrowed Bazemore; the “Discrete Acts” in Morgan Involved Sexual Harassment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 V. An Opposition to a Rule 59(e) Motion Is Not the Place for an Opposing Party to Move to Alter or Amend the Judgment; In Any Event, Section 4(a) of the ADEA Is Not Preempted by Section 4(i); El Paso’s Wear-Away Design Does Not Comply with Either Section 4(a) or Section 4(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 VI. El Paso’s Effort to Block Approval of Plaintiffs’ Renewed ADEA Notice With the Newfound Theory that No One “Actually Experienced a Wear-Away” Also Falls Short . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
i

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TABLE OF AUTHORITIES FEDERAL CASES
Bazemore v. Friday, 478 U.S. 385 (1986) .................................................... 8 City of Los Angeles, Dep’t of Water & Power v. Manhart, 435
U.S. 702 (1978) ........................................................................................ 2 DeWalt v. Meredith Corp., 288 Fed. Appx. 484 (10th Cir. 2008) ............... 11 Engers v. AT&T, 2007 WL 958472 (D.N.J. 2007) ...................................... 13 Florida v. Long, 487 U.S. 223 (1988) ........................................................... 5 Furr v. AT&T Technologies, 824 F.2d 1537 (10th Cir. 1987) ...................... 9 George v. Duke Energy Retirement Plan, 560 F. Supp. 2d 444
(D.S.C. 2008) ......................................................................................... 13 Gilmore v. Macy’s Retail Holdings, 2009 WL 305045 (D.N.J. 2009) .......... 4 Hurlic v. So. Cal. Gas Co., 539 F.3d 1024 (9th Cir. 2008) ......................... 14 Kentucky Retirement Systems v. EEOC, 128 S. Ct. 2361 (2008) ................ 14 Landgraf v. USI Film Products, 511 U.S. 244 (1994) .................................. 4 Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.
Ct. 2162 (2007) ..................................................................................... 7-8 Maki v. Allete, Inc., 383 F.3d 740 (8th Cir. 2004) ........................................ 5 National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) ...... 7-8 Northwest Airlines, Inc. v. Phillips, 2009 U.S. Dist. LEXIS 8672
(D. Minn. 2009) ..................................................................................... 14
ii

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Plaut v. Spendthrift Farm, 514 U.S. 211 (1995) ........................................... 4 Thiessen v. GE Capital Corp, 267 F.3d 1095 (10th Cir. 2001), cert.
denied, 536 U.S. 934 (2002) .................................................................... 9 Zipes v. TWA, 455 U.S. 385 (1982) ............................................................ 11
FEDERAL STATUTES AND LEGISLATIVE HISTORY ADEA §4(a), 29 U.S.C. §623(a) ...................................................... 11, 13-14 ADEA §4(i), 29 U.S.C. §623(i) ....................................................... 11, 13-14 ADEA §7(d), 29 U.S.C. §626(d) ......................................................... 1, 9-11 ADEA §11(l), 29 U.S.C. §630(l) .................................................................. 2 ERISA §204(b)(1)(H), 29 U.S.C. §1054(b)(1)(H) ............................... 13, 15 Lilly Ledbetter Fair Pay Act, P.L. 111-2 (Jan. 29, 2009) ................... passim 155 Cong. Rec. H113-01 (Jan. 9, 2009) ..................................................... 3-4 155 Cong. Rec. H546-03 (Jan. 27, 2009) ...................................................... 2 155 Cong. Rec. S694-01 (Jan. 21, 2009) ...................................................... 3 H.R. Rep. No. 110-237 (July 19, 2007) .............................................. 3, 5, 19 S.Rep. No. 101-263, 1990 U.S.C.C.A.N. 1509 (April 5, 1990) ................... 2 H.R. Rep. No. 101-664, 1990 WL 200383 (Aug. 3, 1990) ......................... 13
iii

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Introduction Plaintiffs hereby reply to El Paso’s 16-page opposition, its 6-page response
to the Plaintiffs’ renewed request for approval of ADEA notice and consent form, and to the extent El Paso incorporates it by reference in the latter response, El Paso’s 24-page “amended motion for partial summary judgment.”
The Lilly Ledbetter Fair Pay Act (P.L. 111-2) expressly applies to the Age Discrimination in Employment Act. In his signing statement on January 29, 2009, President Obama stated that the Act:
is to send a clear message that ... there are no second-class citizens in our workplaces; and it’s not just unfair and illegal, it’s bad for business to pay somebody less because of their gender or their age or their race or their ethnicity, religion or disability. 2009 WL 207323 (emph. added). The Ledbetter Act specifically amends the charge-filing period in Section 7(d) of the ADEA, 29 U.S.C. §626(d), to provide that an unlawful employment practice occurs: (1) “when a discriminatory compensation decision or other practice
is adopted,” (2) “when a person becomes subject to a discriminatory
compensation decision or other practice, or” (3) “when a person is affected by application of a discriminatory
compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.”
1

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P.L. 111-2, §4. Previously, Section 7(d) provided that a charge shall be filed within 180/300 days “after the alleged unlawful practice occurred” with no elaboration. I. The Lilly Ledbetter Fair Pay Act Covers Discriminatory Practices
Involving Benefits, Including Pension Benefits. If there was any doubt about whether the statutory reference to “compensation” covers “benefits,” the inclusive phrase “or other practice” (as in a “compensation decision or other practice”) and the specific reference to “benefits” removes any doubt that this Act is designed to cover discriminatory practices involving pension and other benefits. See 155 Cong. Rec. (Jan. 27, 2009) H554 (statement of Rep. Nadler, co-sponsor of the Act) (“our use of the phrase ‘discriminatory compensation decision or other practice’ should be read broadly, and to include any practice–including, for example, ... pension practices–that impact overall compensation”); accord City of Los Angeles, Dept. of Water & Power v. Manhart, 435 U.S. 702, 712 n.23 (1978) (“pension benefits ... are ‘compensation’ under Title VII”).1 Indeed, one of the principal objections from the
1 The ADEA also specifically provides that “[t]he term ‘compensation, terms, conditions or privileges of employment’ encompasses all employee benefits, including such benefits provided pursuant to a bona fide employee benefit plan.” 29 U.S.C. §630(l), as amended in 1990. The 1990 amendment was to make it “unmistakably clear” that the ADEA’s purpose “includes the elimination of age discrimination in all forms of employee benefits.” S.Rep. No.
2

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Act’s opponents was that it could subject employers to new liabilities for pensions. See 155 Cong. Rec. (Jan. 9, 2009) H115 (Rep. Kline), H121 (Rep. McKeon) and 155 Cong. Rec. (Jan. 21, 2009) S712 (Sen. Enzi).
In this instance, the connection between compensation and pension benefits is unmistakably clear because the challenged “wear-away” practice concerns the receipt of quarterly “pay credits,” equal to a percentage of an employee’s compensation, which are to be credited to a “cash balance” account for retirement, but which are not actually being paid to older employees because of the Plan’s “wear-away” design. II. This Case Is Pending and Therefore Clearly Covered By the Ledbetter
Act’s Effective Date. The House Education and Labor Committee Report on the Ledbetter Act makes clear that the intent of the effective date section (in Section 6 of the Act) is to “ensure[] that no pending or future claims, not yet fully adjudicated, are affected by the Ledbetter ruling.” H.R. Rep. No. 110-237, at 19.2 The Supreme Court has
101-263, 1990 U.S.C.C.A.N. 1509, 1521-22. 2 For the Court’s convenience, H.R. Rep. 110-237 is attached. House Report
No. 110-237 was prepared during the 110th Congress, but the bill on which it reports is identical to the bill introduced and enacted in the first days of the 111th Congress. This is the only House or Senate Report on the Ledbetter Act.
In the House floor debate on January 9, 2009, Representative Robert
3

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“regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed.” Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994).3 Other courts have already applied the Ledbetter Act to pending cases. In Gilmore v. Macy’s Retail Holdings, 2009 WL 305045 *2 (D.N.J. Feb. 4, 2009), Judge Simandle found, on his own motion, that “Congress expressly indicated that the FPA was to apply retroactively” and therefore applied the FPA to the case before him. III. The Legislative Finding About “Pension Distributions” in Section 2(4)
Supports Plaintiffs’ Position Because Mr. Tomlinson Filed His Charge Long Before He Retired. The “Finding” in Section 2(4) of the Ledbetter Act that “[n]othing in this Act is intended to change current law treatment of when pension distributions are considered paid” confirms that Congress intends for the Act to cover discriminatory pension practices–regardless of whether an employee seeks redress
Andrews of New Jersey, a Subcommittee Chair of the Education and Labor Committee, also explained: “The courts have generally recognized that when the pension structure is put in place and the person gets their pension, the clock starts running, and if the time expires after that, your ability to make the claim expires after that.” 155 Cong. Rec. H115.
3 Accord Plaut v. Spendthrift Farm, 514 U.S. 211, 227 (1995) (“When a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly”).
4

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under Title VII, the Americans with Disabilities Act, the Rehabilitation Act, or the ADEA. At the same time, the Finding indicates that Congress intends that the Ledbetter Act not allow employees to rely on the monthly issuance of pension checks to extend the charge filing period beyond the end of their employment and their entry into retirement. The House Education and Labor Committee Report explains that the language in Section 2(4) is to preserve the rule that “pension distributions would be considered paid upon entering retirement and not upon the issuance of each annuity check.” H.R. Rep. No. 110-237, at 18 (2007) (emph. added), citing Florida v. Long, 487 U.S. 223, 239 (1988); Maki v. Allete, Inc., 383 F.3d 740, 744 (8th Cir. 2004). In Maki, the Eighth Circuit explained “Pension checks ... are based on a pension structure that is applied only once, when the employee retires, and the pension checks merely flow from that single application.” The Eighth Circuit rejected two other “options” that the defendant proposed of using the date: (1) when the “allegedly discriminatory bridging provisions were adopted by the defendant” or (2) “when the defendant stated through its Law Department that it planned to make no further amendments to the bridging provision.” 383 F.3d at 744-45. Thus, Maki rejects the argument made by El Paso in this case that the time limit expires 300 days after the adoption of the allegedly discriminatory provisions.
5

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In this instance, Mr. Tomlinson filed his classwide age discrimination charge with the EEOC on June 16, 2004 and did not retire until nearly 3 years later. Mr. Tomlinson charged that “[a]s a result of the conversion from the old pension plan to the new plan, older workers will be denied new pension benefit accruals for a long period.” He alleged that the earliest act of discrimination occurred on “1/01/2002” and that the latest act of discrimination prior to his charge took place on “5/31/2004.” Dkt. 229-6 (Ex. E).
As this indicates, Mr. Tomlinson was still an active El Paso employee when he filed his charge. As such, he should have been earning additional pension benefits in the form of “pay credits” for each quarter of his employment. Section 4.1(a) of the Plan document provides for these pay credits, calculated as a percentage of pay, to be credited quarterly to a “cash balance” account for retirement. Dkt. 221-2 (Ex. 1). As this Court recognized in its first decision in this case, “it is far from clear that the hypothetical payments made to older employees’ cash balance accounts (or ‘pay credits’ attributed to these accounts) should qualify as a ‘cost incurred’ under §623(f), especially if the company knows that the vast majority of older workers will never cash in these ‘payments’ but will rather elect the (now-frozen) benefits they had earned under the old plan.” 2007 WL 891378, *2.
6

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Mr. Tomlinson’s employment relationship with El Paso ended on April 30, 2007. Dkt. 229-7 (Ex. F). On May 1, 2007, he started receiving the retirement benefits that he charged were discriminatorily denied the quarterly “pay credits” which were hypothetically credited since January 1, 2002. Id. As a result, the Finding in Section 2(4) that the Act is not intended to extend the charge-filing period beyond the end of the employment relationship and the employee’s entry into retirement presents no barrier to the timeliness of his charge. Indeed, Mr. Tomlinson’s EEO charge was filed nearly 3 years before the last application of El Paso’s discriminatory pension design to his compensation and the beginning of his pension benefits. IV. This Court’s January 21, 2009 Decision Relied on Ledbetter, and Not
Morgan, Because Ledbetter Addressed Compensation Practices and Substantially Narrowed Bazemore; the “Discrete Acts” in Morgan Involved Sexual Harassment. El Paso seeks to place some distance between this Court’s January 21, 2009 decision and Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162 (2007), by arguing that the Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) “was not overturned by the Ledbetter Act” and that “the Supreme Court’s holding in Morgan that the continuing violation doctrine may not be applied to discrete acts still remains good
7

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law.” Notice of Intent (Dkt. #317) at 2; accord Opp. at 3, 8-9. El Paso’s argument plays upon a false distinction between Ledbetter and
Morgan, acting as though Ledbetter did not involve “discrete acts” and so the legislative reversal of Ledbetter leaves Morgan intact. In fact, the Ledbetter decision borrowed the concept of “discrete acts” from Morgan, which was a sexual harassment/hostile work environment case, and extended it to discriminatory individual decisions about Ms. Ledbetter’s compensation. 127 S.Ct. at 2165 and 2169.
Most critically, however, this Court’s January 21, 2009 decision did not rely on Morgan. It relied on Ledbetter. This Court found that Ledbetter had distinguished Bazemore v. Friday, 478 U.S. 385 (1986), on the basis that the perpetuation of the individual decisions about Ms. Ledbetter’s compensation occurred pursuant to a “facially nondiscriminatory and neutrally applied” pay structure, and not a “facially discriminatory pay structure that put[] some employees on a lower scale because of race” as was at issue in Bazemore. 127 S.Ct. 2173-74. By contrast, Morgan describes Bazemore as “a pattern-or-practice case” and in footnote 9 states that “[w]e have no occasion here to consider the timely filing question with respect to ‘pattern-or-practice’ claims brought by private litigants as none are at issue here.” 536 U.S. at 112 and 115 n.9. For these
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reasons, this Court believed that Ledbetter, and not Morgan, had implicitly overturned the Tenth Circuit’s precedents on pattern-or-practice cases, including Thiessen v. GE Capital Corp, 267 F.3d 1095, 1105 (10th Cir. 2001), cert. denied, 536 U.S. 934 (2002), and Furr v. AT&T Technologies, 824 F.2d 1537, 1543-44 (10th Cir. 1987).
In enacting the Ledbetter Act, Congress made a clear legislative determination that the Supreme Court’s Ledbetter ruling was “unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.” P.L. 111-2, Section 2(1). Accordingly, the Ledbetter Act effectively reversed the Supreme Court’s narrowing of Bazemore to “facially discriminatory pay structures” and instead provided that an unlawful employment practice occurs “when a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” Id., Sections 3 and 4.
At bottom, the issue now is whether Wayne Tomlinson’s charge of discrimination is timely under Section 7(d) of the ADEA, as amended by the Ledbetter Act. Plaintiffs respectfully submit that Mr. Tomlinson’s charge of age
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discrimination is timely because “each time” El Paso applied its “wear-away” plan design to Mr. Tomlinson’s quarterly“pay credits” constituted an act of age discrimination. Mr. Tomlinson’s charge is also timely under the intent expressed in Section 2(4) that “pension distributions [are] considered paid upon entering retirement” because Mr. Tomlinson did not enter retirement until May 1, 2007.
El Paso’s arguments are by contrast internally inconsistent. In the first part of its opposition, El Paso appears to agree, based on Section 2(4) of the LLFPA and the House Committee Report, that pension distributions are considered paid upon retirement for charge-filing purposes. Opp. at 4-7 and 10-12. However, in other places, El Paso seems to argue, based on Morgan, that Mr. Tomlinson’s time for filing an EEOC charge continues to run exclusively from “El Paso’s adoption of the cash balance plan.” Opp. at 8; id. at 10 (charge was not filed “within 300 days of El Paso’s discrete act of amending the plan”). Both of these positions cannot be true; the former is supported by the Ledbetter Act and its Findings; the latter is discredited by the terms of Section 7(d) of the ADEA, as amended.
Defendants complain further that Plaintiffs’ motion to alter or amend does not contain “admissible evidence that they were ‘affected by application of a discriminatory practice’ within 300 days of filing” and does not adequately “explain how the language of the statute actually applies to a wear-away claim.”
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Opp. at 8 and 11. This Court already recognized, however, that “each quarter the employee earns ‘pay credits’ based upon a percentage of their salary” and that “for some workers overall benefits did not grow until the cash balance benefits caught up to and exceeded the ‘frozen’ benefits due under the old formula. This period is commonly referred to as a ‘wear away.’” Slip Op. at 2-3. There was no reason for Plaintiffs to repeat that in their motion to alter or amend. Moreover, both before and after the Ledbetter Act, the untimeliness of a charge remains an affirmative defense. See Zipes v. TWA, 455 U.S. 385, 393 (1982); DeWalt v. Meredith Corp., 288 Fed. Appx. 484, 490 (2008). In this instance, even though Section 7(d) has indisputably been amended, Defendants have made no effort to set forth evidence of how the application of the wear-away design to Mr. Tomlinson’s quarterly “pay credits” can possibly fall outside the terms of the amended statute. V. An Opposition to a Rule 59(e) Motion Is Not the Place for an Opposing
Party to Move to Alter or Amend the Judgment; In Any Event, Section 4(a) of the ADEA Is Not Preempted by Section 4(i); El Paso’s WearAway Design Does Not Comply with Either Section 4(a) or Section 4(i). In its Opposition, El Paso advances a new argument that Mr. Tomlinson’s charge is not “cognizable” under the ADEA because ADEA Section 4(i) effectively forecloses any action under Section 4(a) related to benefit accruals. El Paso then argues that this Court already dismissed Claim III under statutory
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language identical to Section 4(i). Opp. at 12-16. El Paso did not make this argument in: (1) its March 2005 motion to dismiss, (2) its May 2007 motion for judgment on the pleadings, (3) its April 2008 motion for summary judgment on the timeliness of Mr. Tomlinson’s charge, or (4) its May 14, 2008 motion for partial summary judgment. It is true that this Court’s March 28, 2008 opinion specifies that El Paso’s April 2008 motion was to be “limited to the ADEA statute of limitations issue.” 2008 WL 762456, *9. But this Court did not prevent El Paso from making its ADEA Section 4(i) argument in its March 2005 motion to dismiss, its May 2007 motion for judgment on the pleadings, or its May 14, 2008 motion for partial summary judgment. El Paso’s ADEA Section 4(i) argument (which is reiterated in the “amended motion for summary judgment” that El Paso filed on the same day) is therefore a dispositive motion made long after the July 14, 2008 deadline established by Magistrate Judge Shaffer for dispositive motions. Dkt. #199. If this Court were to rely on El Paso’s new argument, it would alter or amend the judgment even though El Paso did not file a Rule 59(e) motion or any timely dispositive motion on this ground.
El Paso’s argument is, moreover, without merit. As this Court recognized, the “wear-away” claim relates to the receipt of benefit accruals (older workers “will never cash in these ‘payments’”) rather than the benefit accrual formula.
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Although Plaintiffs did not agree with these rulings, this Court has already ruled that the rates at which benefits are accruing under El Paso’s cash balance formula satisfy the anti-backloading rules (Claim II) and the anti-rate-reduction standard in ERISA Section 204(b)(1)(H) (Claim III). This Court has not decided whether the failure of El Paso to actually pay older employees those “pay credits” satisfies the age discrimination standards in Section 4 of the ADEA. In Engers v. AT&T, 2007 WL 958472, *2-3 (D.N.J. 2007), Judge Chesler examined the statutory language and the legislative history in connection with another wear-away claim and concluded that “there may be circumstances in which claims of discriminatory pension accruals will be resolved outside of Section 4(i).”4 As is true here, he also determined that AT&T had never shown its compliance with Section 4(i) with respect to that claim. In George v. Duke Energy Retirement Plan, 560 F.Supp.2d 444, 463 (D.S.C. 2008), Judge Harwell ruled that “the Smith [v. City of Jackson] case specifically holds that disparate impact claims were permitted under the ADEA” and therefore that they can be brought under Section 4(a)(2). As a result,
4 In so holding, Judge Chesler relied on a 1990 Senate Report which states, “In circumstances in which the provisions of section 4(i) are inapplicable, claims of discriminatory accruals or pension credits in defined benefit and defined contribution pension plans shall continue to be resolved under section 4(f)(2) as modified by these amendments.” 2007 WL 958472 *3. The quoted language also appears in the House Education and Labor Committee Report. See H.R. Rep. 664, 101st Cong., 2d Sess., at 35-36, 1990 WL 200383 (Leg.Hist.).
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he concluded that the “wear-away” effect experienced by employees over the age of 40 states a disparate impact claim. Finally, in Kentucky Ret. Systems v. EEOC, 128 S.Ct. 2361, 2365, 2368 (2008), the Supreme Court analyzed an age discrimination claim concerning a formula for “calculating” retirement benefits with “imputed years” of service for disability without once discussing any possible preclusion by the benefit accrual rules in ADEA Section 4(i).
Even if a cessation of benefits was somehow not “cognizable” under Section 4(a) of the ADEA, Plaintiffs’ wear-away claim could be recognized under Section 4(i) because El Paso’s wear-away design “requires or permits...the cessation of an employee’s benefit accrual...because of age.” El Paso’s argument that Section 4(i) blocks any claim of age discrimination under Section 4(a), but still does not make a cessation in benefit accruals unlawful relies more on sophistry than logic.5 In particular, Defendants seem to play on the fact that the Court previously dismissed Claim III which was brought under ERISA
5 Defendants rely on Hurlic v. So. Cal. Gas Co., 539 F.3d 1024, 1035-37 (9th Cir. 2008). But Hurlic is distinguishable because the plaintiffs were pursuing an action under the California Fair Employment and Housing Act (FEHA) which has no counterpart to ADEA Section 4(i). Thus, the Ninth Circuit panel could not decide whether Section 4(i) covered Hurlic’s wear-away claim because Section 4(i) was not before it. In Northwest Airlines, Inc. v. Phillips, 2009 U.S. Dist. LEXIS 8672 *24-28 (D. Minn. 2009), there was no “wear-away” claim; the district court simply decided that the defendant pilots had offered insufficient proof that a cessation in accruals was because of age.
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§204(b)(1)(H), pursuant to nearly identical statutory language to ADEA §4(i). Opp. at 12 and 16. Defendants overlook, however, that Claim III was not about “wear-aways,” as this Court’s March 22, 2007 opinion shows. See 2007 WL 891378 *3. The wear-away claim is set forth in Claim I. This Court refused to dismiss Claim I in the March 22, 2007 opinion because the “pay credits attributed” to older employees’ cash balance accounts could not “qualify as a ‘cost incurred’ under §623(f)” where “the vast majority of older workers will never cash in these ‘payments.’” 2007 WL 891378 *2. On January 21, 2009, this Court dismissed Claim I but solely on the timeliness ground which is the subject of the present motion. VI. El Paso’s Effort to Block Approval of Plaintiffs’ Renewed ADEA Notice
With the Newfound Theory that No One “Actually Experienced a Wear-Away” Also Falls Short. This Court’s March 28, 2008 decision directed El Paso to promptly file any motion on timeliness and stated that “[i]n the event I determine that the charge was timely filed or that there are genuine issues of fact about the timeliness, Plaintiffs may resubmit the ADEA collective action notices and consent forms for my approval.” 2008 WL 762456 at *9. El Paso had already opposed the notice and consent forms that Plaintiffs submitted. Dkt. #126, 127. At the Court’s direction and in response to that opposition, Plaintiffs amended the class definition to “limit
15

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the class to individuals whose benefits were subject to a wear away period.” Id. at *8.
However, now, in addition to its 16-page opposition to the motion to alter or amend, El Paso has filed a separate 6-page response to the request for approval of the ADEA collective action notice and consent form which Plaintiffs renewed in their motion to alter or amend. Dkt. #326. That response furthermore incorporates part of a 24-page “amended motion for summary judgment” filed on the same day. El Paso’s response, combined with that “amended motion,” offers an argument against approval of the ADEA notice that is different than anything El Paso has offered previously. This time, astonishingly given the record in this case and all of its prior statements, El Paso asserts that “none of the Plaintiffs experienced a benefit freeze” and that no one (including both the named Plaintiffs and any other employees) “actually experienced a wear-away.” Opp. at 5 and S.J. Memo (dkt. #325) at 2. Obviously, El Paso’s new assertions are totally at odds with its prior positions. Indeed, El Paso’s motion for partial summary judgment on the SPD claim was based on both parties’ assertion, which this Court adopted, that “for some workers, overall benefits did not grow until the cash balance benefits caught up to and exceeded the ‘frozen’ benefits under the old formula. This period is commonly referred to as a ‘wear away’.” Slip Op. at 3. In ruling against Plaintiffs
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on the SPD claim, this Court further agreed with El Paso that “[t]he [1999] bar graph clearly shows the wear away effect, as it shows both the frozen old benefit and the growing cash balance plan benefit at several intervals.” Id. at 15.
Now, El Paso says that wasn’t really true and that “no wear-away exists” (dkt. #325 at 12) because if one looks at the named Plaintiffs’ pension benefits from a different perspective, i.e., based on their “immediate value” or “actually payable value,” the “frozen” benefits were really “growing” after all. This argument is based on a contortion of the fact that if an individual is entitled to a retirement benefit of $1,000 per month, the “present value” of that entitlement increases each year–even if the monthly amount is completely frozen (the increases in present value occur, moreover, whether or not an individual is employed).
Simply put, El Paso’s new theory totally neglects to address the fact that the quarterly “pay credits” for older workers like Mr. Tomlinson are still not being paid, sometimes for periods of employment with El Paso in excess of 10 years, whereas they are being paid to relatively younger employees. If El Paso wishes to advance its newfound theory later, and the Court permits yet another motion to dismiss/motion for summary judgment, Plaintiffs will address it fully and show that even El Paso’s own actuarial and statistical experts are unwilling to support it.
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As a result, El Paso is now principally relying on a declaration from an actuary
who was not designated as one of its experts. Indeed, the only actuary who El Paso
can evidently find to support its new theory is the Mercer actuary who advised El
Paso on the discriminatory wear-away design in the first place. See Dkt. 325-8 (Declaration of Kevin Minor).6
Conclusion
For the foregoing reasons, Plaintiffs respectfully request that their motion to
alter or amend the judgment entered on January 23, 2009 be granted and that this
Court approve the ADEA notice of collective action and consent form.
DATED: March 3, 2009
Respectfully submitted,
s/ Stephen R. Bruce Stephen R. Bruce Allison C. Pienta 805 15th St., NW, Suite 210 Washington, D.C. 20005 202/371-8013 stephen.bruce@prodigy.net
6 This is the second substantive Declaration from Mr. Minor that El Paso has submitted in this case even though El Paso did not designate him as an expert. In his previous Declaration Mr. Minor found wear-aways. Dkt. 130-2 at 4 and 6 (“Whether a particular employee in the proposed class experienced wearaway...depends heavily on the combination of that participant’s age and years of service”; “Some employees included in the proposed class did, in fact, experience the wear-away described in Plaintiffs’ Complaint”).
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s/ Barry D. Roseman Barry D. Roseman McNamara, Roseman, Martinez & Kazmierski, LLP 1640 East 18th Avenue Denver, CO 80218-1202 303/333-8700 bdr@18thavelaw.com Attorneys for Plaintiffs Attachment: H.R. Rep. No. 110-237.
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CERTIFICATE OF SERVICE The undersigned hereby certifies that, on this 3rd day of March 2009, a true
and correct copy of (1) Plaintiffs’ Reply Memorandum in Support of Motion to
Alter or Amend Judgment Entered on January 23, 2009, and (2) this Certificate of
Service was sent via CM/ECF electronic filing, addressed to the following parties:
Darren E. Nadel LITTLER MENDELSON, P.C. One Tabor Center 1200 17th Street, Suite 1000 Denver, CO 80202
Christopher J. Rillo, Esq. GROOM LAW GROUP 1700 Pennsylvania Ave., N.W. Washington, D.C. 20006-5893
Attorneys for Defendants
s/ Stephen R. Bruce

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO SENIOR JUDGE WALKER D. MILLER
Civil Action No. 04-cv-02686-WDM-MEH WAYNE TOMLINSON, ALICE BALLESTEROS, and GARY MUCKELROY, individually and on behalf of all others similarly situated,
Plaintiffs, v. EL PASO CORPORATION, and EL PASO PENSION PLAN,
Defendants.
ORDER ON RENEWED MOTION FOR SUMMARY JUDGMENT Miller, J.
This matter is before me on the Renewed Motion for Summary Judgment on ADEA Claim (Docket No. 362), filed by Defendants El Paso Corporation and El Paso Pension Plan (collectively “El Paso”). Plaintiffs oppose the motion. Upon review of the parties’ filings and supplemental authority, I conclude oral argument is not required. For the reasons that follow, the motion for summary judgment will be granted and judgment shall enter as a matter of law on Plaintiff’s sole pending claim, brought under the Age Discrimination in Employment Act (“ADEA”).
Background This case arises out of El Paso Corporation’s conversion of its defined benefit pension plan, in particular one based on a final average pay formula to one based on a cash balance formula. Under the old plan, the amount of a retiree’s monthly pension was based upon their years of credited service and a final average of salary. Under the

amended plan, this amount is based upon the amount of credits employees accumulate throughout their years of service. Each participating employee is given a hypothetical account, and each quarter the employee earns “pay credits” based upon a percentage of their salary, and “interest credits” based upon the yield of a five-year U.S. Treasury Bond. See generally, Register v. PNC Fin. Servs. Group, Inc., 477 F.3d 56, 61-63 (3d Cir. 2007) (comparing and contrasting traditional defined-contribution plans, traditional defined-benefit plans, and cash balance plans).
During a transition period between January 1, 1997, and December 31, 2001, participating employees accrued benefits under both the new and old plans, and retiring employees could elect whichever option benefitted them the most. Once this transition period expired retirees could still choose either option, but the old average pay plan was “frozen” at whatever benefits the employee had earned as of December 31, 2001. Benefits would continue to accrue under the new cash balance formula.
In this putative class action, Plaintiffs allege that El Paso set the initial cash balance accounts for older, longer-service employees at levels significantly below the value of their accumulated annuities under the old plan. One effect of the transition was that for some workers, overall benefits did not grow until the cash balance benefits caught up to and exceeded the “frozen” benefits due under the old formula.1 This period is commonly referred to as a “wear away.”
Plaintiffs’ first claim for relief is based on their allegation that the freezing of old plan accruals discriminated against older workers in violation of the ADEA, specifically
1This is disputed to some extent. Defendants argue that the benefit under the old plan was only “frozen” if considered as a benefit payable at normal retirement age (age 65) but not if calculated as an early retirement benefit at any point before then.
2

29 U.S.C. § 623(a), as described further below. Plaintiffs also asserted the following claims under the Employee Retirement Income Security Act (“ERISA”): Violation of ERISA sections 203(a) and 204(b)(1)(B) (Claim II); Inadequate notice of amendment in violation of ERISA section 204(h) (Claim IV); Inadequate summary plan descriptions (Claim V). I dismissed Plaintiffs’ third claim, that the cash balance plan violated ERISA, 29 U.S.C. § 1054(b)(1)(H), on March 22, 2007 (Docket No. 108) based on arguments and authorities in a Motion to Dismiss filed by Defendants. On March 19, 2008, I ruled on a number of then pending motions and dismissed Plaintiffs’ second and fourth claims, leaving pending the ADEA claim (Claim I) and the remaining ERISA claim regarding the adequacy of a summary plan description (Claim V). Docket No. 213.
Defendants thereafter moved for summary judgment on Claim I on the grounds that it is time-barred and on Claim V on the grounds that the summary plan description was adequate under the law at the time. On January 21, 2009, I granted summary judgment on the remaining claims, determining specifically as a matter of law that Plaintiffs’ ADEA claim was barred by the failure to file a timely charge of discrimination with the EEOC. Docket No. 311. However, shortly after I issued by decision, the Lilly Ledbetter Fair Pay Act of 2009, P.L. 111-2, (the “Ledbetter Act”) was enacted, which modifies the time limit for when a charge of discrimination needs to be filed in certain cases. Because of the retroactive effect of the Ledbetter Act and uncertainty about its scope, I concluded that my previous disposition of Plaintiffs’ ADEA Claim could not stand. I therefore amended my decision with regard to Plaintiffs’ ADEA Claim and requested that the parties brief the ADEA claim on the merits. Docket No. 359. The issues on this last remaining claim are now fully briefed and ready for review.
3

Standard of Review Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. A factual issue is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Where “the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying ‘a lack of evidence for the nonmovant on an essential element of the nonmovant’s claim.’” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)). Then, “[t]o avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case.” Id.
Discussion Defendants offer several grounds in support of their motion for summary judgment. First, they contend that recent case law, most specifically Hurlic v. Southern Calif. Gas Co., 539 F.3d 1024 (9th Cir. 2008), has established that age discrimination claims concerning wear away periods are not cognizable under subsection (a) of 29 U.S.C. § 623 [ADEA] but rather must be brought under subsection (i) of the same statute. Second, they assert that a claim under subsection (i), 29 U.S.C. § 623(i), even if properly pled, would fail because this provision is given the same effect as section 204(b)(1)(H) of ERISA, 29 U.S.C. § 1054(b)(1)(H). Since I already dismissed Plaintiff’s claim under this section of ERISA, Defendants assert that the parallel ADEA claim
4

would also be dismissed.
As discussed further below, I agree with Defendants that under the ADEA, claims
relating to “the reduction of the rate of an employee’s benefit accrual,” such as the effect
of the wear away here, are governed in the first instance by 29 U.S.C. § 623(i).
Because the plan complies with this subsection, I agree that the claim cannot be
brought under subsection 623(a). I do not address Defendants’ other arguments in
support of their motion for summary judgment.2
The ADEA contains several provisions prohibiting discrimination on the basis of
age. Subsection (a) contains the general anti-discrimination provision, which is as
follows:
It shall be unlawful for an employer--
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;
(2) to limit, segregate, or classify his employees in any way
2Defendants also argue that because Plaintiffs retired before age 65, their claims should be analyzed under the plan terms governing early retirement and that the value of early retirement benefits under the old plan actually continued to grow after the transition period. This argument is based on features of the old plan that contained reduction factors for taking early retirement; these reduction factors decreased as Plaintiffs got closer to age 65 or age 60 plus 30 years of service. Plaintiffs dispute that this decrease in reduction factors amounts to an actual increase in the value of their benefits. Defendants’ next assertion is that the wear away period does not occur “because of” age, which is an essential element of any ADEA claim, but rather because of years of service and salary and, more specifically, the difference between a participant’s accruals under the old plan and the cash balance benefit. Defendants further argue that Plaintiffs cannot show that the alleged wear away caused an adverse impact on Plaintiffs. Next, Defendants contend that even if the plan and transition period amounted to a violation of the ADEA, they are entitled to an affirmative defense under 29 U.S.C. § 623(f)(2)(B)(i). Finally, they again argue that Plaintiffs failed to exhaust administrative remedies.
5

which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or
(3) to reduce the wage rate of any employee in order to comply with this chapter.
29 U.S.C. § 623(a). However, the statute contains a separate provision relating
specifically to pension benefit plans, which states that it shall be unlawful for an
employer to establish or maintain an employee pension benefit plan which requires or permits “in the case of a defined benefit plan,3 the cessation of an employee’s benefit
accrual, or the reduction of the rate of an employee’s benefit accrual, because of age . .
.” 29 U.S.C. § 623(i)(1)(A). Subsection (i) contains additional terms regarding
limitations on the amount of benefits a plan may provide (unrelated to age) and
requirements concerning distributions, interest credits, and other matters concerning the
establishment and operation of such benefit plans. Of importance here is the following
paragraph: “Compliance with the requirements of this subsection with respect to an
employee pension benefit plan shall constitute compliance with the requirements of this
section relating to benefit accrual under such plan.” 29 U.S.C. § 623(i)(4).
Finally, the ADEA contains a sort of safe harbor or affirmative defense in
subsection (f) for actions that would otherwise be prohibited:
It shall not be unlawful for an employer, employment agency, or labor organization . . . to take any action otherwise prohibited under subsection (a), (b), (c), or (e) of this section--
* * *
3The cash balance plan is considered to be a defined benefit plan under the law, but in function is more of a hybrid of a defined benefit and defined contribution plan. Register, 477 F.3d at 62.
6

(B) to observe the terms of a bona fide employee benefit plan-(i) where, for each benefit or benefit package, the actual amount of payment made or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker . . . . 29 U.S.C. § 623(f)(2)(B). Several courts have discussed the interaction between subsection (a) and subsection (i) in the context of age discrimination claims based on the wear away effect after a plan conversion such as El Paso’s. Most notably, the Ninth Circuit in Hurlic examined these provisions and similar provisions in ERISA. The Hurlic court noted that subsection (i)(1)(A) of the ADEA (29 U.S.C. § 623(i)(1)(A)) mirrors ERISA section 204(b)(1)(H)(i) (29 U.S.C. § 1054(b)(1)(H)(i)) and the two are intended to have an identical meaning. 539 F.3d at 1036. In Hurlic, as in this case, it was determined that the cash balance plan, and the accruals thereunder, do not violate ERISA § 204(b)(1)(H)(i). Id. Accordingly, the plan does not violate the parallel provision of the ADEA. Id. The plaintiffs in Hurlic sought to bring their age discrimination claim relating to the wear away effect, resulting from their employer’s transition to a cash balance plan, under a California statute that was equivalent to subsection subsection (a), the general anti-discrimination provision of the ADEA (29 U.S.C. § 623(a)). The court determined that a claim relating to a wear away concerns “benefit accrual” and therefore must be brought under subsection (i). 539 F.3d at 1037. Since paragraph (i)(4) states that compliance with subsection (i) constitutes compliance with the ADEA, see 29 U.S.C. § 623(i)(4), and the rate of benefit accruals do not violate subsection (i), the court held that the claim could not be asserted under subsection (a) [which preempted its state
7

equivalent]. Id. In part, the court relied on the legislative history of the enactment of subsection (i), which indicates an intent to limit relief under the ADEA for claims relating to benefit accruals to subsection (i). Id.
Several district courts have followed the reasoning of Hurlic and similarly held that claims that a wear away effect from a plan transition violated to the ADEA must be examined under subsection (i), not subsection (a). See, e.g., Northwest Airlines, Inc. v. Phillips, 594 F. Supp. 2d 1075 (D. Minn. 2009); Jensen v. Solvay Chemicals, Inc., Case No. 06-cv-273 (D. Wyo., August 3, 2009).
In response, Plaintiffs argue that the ADEA prohibits age discrimination “in all forms of employee benefits,” which means that if a claim based on periods of wear away are not covered by subsection (i), they must be covered by some other section. Plaintiffs also cite Engers v. A T & T, No. Civ. A. 98-3660(SRC), 2007 WL 958472 (D. N.J., Mar. 29, 2007) (Engers I) in support of their position that subsection (i) does not necessarily control. In Engers I, the court denied the defendant’s motion to dismiss an ADEA claim relating to pension benefit accruals brought under subsection (a), concluding that benefit accrual issues can arise under subsections other than subsection (i). Engers, 2007 WL 958472 at * 3. The decision also rested in part on the court’s finding that the question of the plan’s compliance with subsection (i) had not yet been resolved in the proceedings.4
4Plaintiffs also cite George v. Duke Power, 560 F. Supp. 2d 444 (D.S.C. 2008), which permitted a wear away claim to proceed under subsection (a). However, since George did not address the interaction between subsections (a) and (i) of the ADEA, I do not consider it to be informative on this question. Plaintiffs also argue that the Internal Revenue Service “may” have concerns about wear away periods, as shown by form letters from 2004 and 2007. Exh. 23 to Plaintiffs’ Opposition (Docket No. 376-24). This evidence does not demonstrate a clear position from the IRS in this regard and so I
8

I disagree with Plaintiff’s interpretation and do not find the reasoning in Engers I to be persuasive. Although the language of subsection (a) is broad, it is clearly modified by the limitation of subsection (i)(4), which states that compliance with the subsection “shall constitute compliance with the requirements of this section relating to benefit accrual under such plan.” 29 U.S.C. § 623(i)(4). Subsection (i) does not prohibit all differences in pension benefits among employees of different ages, but rather makes unlawful an employer’s cessation or reduction in the rate of an employee’s “benefit accrual” because of age. As has been noted by numerous courts, this terminology in ERISA and the ADEA means that Congress intended only to regulate the rate that an employee’s benefits increase rather than the participant’s total accrued benefit. Hurlic, 539 F.3d at 1030 (citing Lockheed Corp. v. Spink, 517 U.S. 882, 897 (1996) (“A reduction in total benefits due is not the same as a reduction in the rate of benefit accrual; the former is the final outcome of the calculation, whereas the latter is one of the factors in the equation.”)); Register, 477 F.3d at 68 (“Thus, the ‘benefit’ as used in the phrase ‘benefit accrual’ refers to the stated account balance as that is how the benefit is defined by cash balance plans. Once this proposition is grasped, it becomes clear that the ‘accrual’ of ‘benefit’ in section 1054(b)(1)(H)(i) refers to the credits deposited into the participant's cash balance accounts, i.e., the inputs.”). As I have previously determined, the cash balance plan does not reduce the rate of an employee’s benefit accrual because of age; under the plan, El Paso gives older employees as many interest credits as younger employees and gives higher pay credits to employees based on age and years of service (capped at 7% when age and service
do not find it persuasive. 9

equal 65). That the total accrued benefit under the new plan may not exceed the
accrued benefit under the old plan for certain employees for a period of time does not
mean that the ADEA is necessarily implicated, since the rate of credits deposited in the
accounts is not reduced.5
In Engers I, the court did not address the legislative intent behind the enactment
of subsection (i) but rather looked at legislative history in connection with the adoption of
amendments to subsection (f)(2), which occurred after subsection (i) was adopted. That
court noted that the House Education & Labor Committee and the Senate Human
Resources Committee stated: “in amending [ADEA] section 4(f)(2) it is not the intent of
the Committee in any way to alter or modify the requirements of section 4(i) . . . In
5Further, Plaintiffs’ own evidence indicates that the cash balance plan and its conversion does not violate section 4(i) or that the wear away effect is not “because of” age. Plaintiffs have provided evidence from an expert witness that two workers, one aged 55 and one aged 30, with similar salaries ($70,000) and years of service (10 years) in 2002, after the expiration of the five year transition period, would have different wear away periods. Supplemental Declaration of Claude Poulin, Ex. 1 (Docket No. 37627). This, however, is because the 55 year old worker would have an accrued benefit under the old plan of $59,008 and under the new plan of $40,536 (both present value). The 30 year old worker by contrast, would have an accrued benefit under the old plan of $16,149. Mr. Poulin’s evidence is that the 55 year old worker would have a five year wear away period but the 30 year old would have a wear away period of approximately 1.3 years because of the vastly more generous benefits given to the older employee under the old plan. Also, according to Mr. Poulin’s calculations, the older worker would have higher accrued benefits than the younger worker under either plan for the next 21 years. Thus, Plaintiffs’ evidence demonstrates that an older employee similarly situated to a younger employee in terms of salary and years of service would have a higher opening account balance under the cash balance plan and will receive accrual credits at a higher rate as well, which indicates that the plan complies with section 4(i). See Jensen v. Solvay Chemicals Inc., Case No. 06-cv-273-J (D. Wy. Aug. 8, 2009) at 25; 29 U.S.C. § 623(i)(10)(A) (“A plan shall not be treated as failing to meet the requirements of paragraph (1) if a participant’s accrued benefit, as determined as of any date under the terms of the plan, would be equal to or greater than that of any similarly situated, younger individual who is or could be a participant.”). However, since neither party addressed subsection (i)(10), I do not rely on this for my decision.
10

circumstances in which the provision of section 4(i) are inapplicable, claims of discriminatory accruals or pension credits in defined benefit and defined contribution plans shall continue to be resolved under section 4(f)(2) as modified by these amendments.” Engers I at *3, quoting S. Rep. No. 101-263, at 1525 (1990). The court concluded that this “clearly contemplates that there may be circumstances in which claims of discriminatory pension accruals will be resolved outside of § 4(i).” Id. However, since section 4(f)(2) is a safe harbor provision, I understand this statement in the Committee report to mean simply that where a plan does not comply with section 4(i) (thereby making 4(i) “inapplicable”), an employer may still avail itself of the affirmative defenses provided in section 4(f)(2). Accordingly, I find the analysis in Hurlic to be more persuasive and will follow that reasoning.
Moreover, the Engers court recently resolved any ambiguity it left regarding the interaction of sections 4(a) and 4(i) in a decision following further proceedings, stating plainly that even if the plaintiff asserted a claim under section 4(a) “judgment must be entered in favor of Defendants if the Plan complies with the requirements of ADEA § 4(i).” Engers v. A T & T, No. Civ. A. 98-3660(SRC), 2010 WL 2326211 at *3 (D. N.J., June 7, 2010) (Engers II). The court in Engers II then addressed the issue of the plan’s compliance with section 4(i) under a summary judgment standard and concluded, as I did in this case, that the wear away does not violate section 4(i) because the rate of benefit accruals does not cease or reduce because of age. Id. at *4 - *5 (citing Register).
The Defendants’ plan does not violate subsection (i) of the ADEA. Therefore, because compliance with subsection (i) amounts to compliance with the ADEA, I
11

conclude that Plaintiffs’ ADEA claim fails. Accordingly, it is ordered: 1. The Renewed Motion for Summary Judgment on ADEA Claim (Docket No. 362) is granted. 2. Defendants may have their costs. DATED at Denver, Colorado, on July 26, 2010. BY THE COURT:
s/ Walker D. Miller United States Senior District Judge

PDF FINAL

12

 
 Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 1 of 42
NDISPO,TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:04−cv−02686−WDM−CBS

Tomlinson et al v. El Paso Corporation et al Assigned to: Judge Walker D. Miller Referred to: Magistrate Judge Craig B. Shaffer Case in other court: USCA, 10−01385 Cause: 29:1001 E.R.I.S.A.: Employee Retirement
Plaintiff

Date Filed: 12/29/2004 Date Terminated: 08/06/2010 Jury Demand: Plaintiff Nature of Suit: 791 Labor: E.R.I.S.A. Jurisdiction: Federal Question

Wayne Tomlinson individually and on behalf of all others similarly situated

represented by Barry Douglas Roseman McNamara Roseman &Shechter, LLP 1640 East 18th Avenue Denver, CO 80218 303−333−8700 Fax: 303−331−6967 Email: bdr@18thavelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen R. Bruce Stephen R. Bruce, Law Offices 805 15th Street, NW #210 Washington, DC 20005 202−371−8013 Fax: 202−371−0121 Email: stephen.bruce@prodigy.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Alice Ballesteros individually and on behalf of all others similarly situated

represented by Barry Douglas Roseman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen R. Bruce (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Gary Muckelroy individually and on behalf of all others similarly situated

represented by Barry Douglas Roseman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen R. Bruce (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant El Paso Corporation

represented by Christopher James Rillo Schiff Hardin, LLP−San Francisco One Market, Spear Street Tower

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 2 of 42

Thirty−Second Floor San Francisco, CA 94105 415−901−8700 Fax: 415.901.8701 Email: crillo@schiffhardin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raymond W. Martin Wheeler Trigg O'Donnell, LLP 370 17th Street Suite 4500 Denver, CO 80202−5647 303−244−1800 Fax: 303−244−1879 Email: martin@wtotrial.com TERMINATED: 07/14/2008 LEAD ATTORNEY

Darren E. Nadel Littler Mendelson, PC−Denver 1900 16th Street Suite 800 Denver, CO 80202 303−629−6200 Fax: 303−629−0200 Email: dnadel@littler.com

Jill M. Brady Littler Mendelson, PC−Denver 1900 16th Street Suite 800 Denver, CO 80202 303−362−2888 Fax: 303−629−0200 Email: jibrady@hotmail.com TERMINATED: 12/17/2007

Joshua B. Kirkpatrick Littler Mendelson, PC−Denver 1900 16th Street Suite 800 Denver, CO 80202 303−629−6200 Fax: 303−629−0200 Email: jkirkpatrick@littler.com

Melissa Monheim Randall Littler Mendelson, PC−Denver 1900 16th Street Suite 800 Denver, CO 80202 303−629−6200 Fax: 303−629−0200 Email: mmonheim@littler.com TERMINATED: 11/02/2010

Defendant El Paso Pension Plan

represented by Christopher James Rillo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raymond W. Martin

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 3 of 42

(See above for address) TERMINATED: 07/14/2008 LEAD ATTORNEY

Darren E. Nadel (See above for address) ATTORNEY TO BE NOTICED

Jill M. Brady (See above for address) TERMINATED: 12/17/2007

Joshua B. Kirkpatrick (See above for address) ATTORNEY TO BE NOTICED

Melissa Monheim Randall (See above for address) TERMINATED: 11/02/2010

Interested Party
Mercer Human Resource Consulting, Inc.

represented by Thomas J. Burke , Jr. Burke Law Firm, P.C. 1801 Broadway #1100 Denver, CO 80202 303−292−0110 Fax: 303−292−3661 Email: tjburkejr@theburkelawfirm.com TERMINATED: 02/07/2008 LEAD ATTORNEY

Christopher Hulbert Toll Holland &Hart, LLP−Greenwood Village 6380 South Fiddlers Green Circle Suite 500 Greenwood Village, CO 80111−2800 303−290−1637 Fax: 303−975−5300 Email: ctoll@hollandhart.com ATTORNEY TO BE NOTICED

Robyn A. Kashiwa Holland &Hart, LLP−Denver P.O. Box 8749 555 17th Street Suite 3200 Denver, CO 80201−8749 303−295−8157 Fax: 303−291−9180 Email: rakashiwa@hollandhart.com ATTORNEY TO BE NOTICED

Date Filed 12/29/2004
12/29/2004 01/12/2005

# Docket Text
1 Class Action COMPLAINT against El Paso Corporation, El Paso Pension Plan (Filing fee $ 150 #256984.) , filed by plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. Jury demand.(bpm, ) (Entered: 12/30/2004)
Summons Issued as to El Paso Corporation, El Paso Pension Plan. (bpm, ) (Entered: 12/30/2004)
2 ORDER returning case to clerk's office for reassignment to another judge. Signed by Judge Zita L. Weinshienk on 1/12/05. (gms, ) (Entered: 01/14/2005)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 4 of 42

01/14/2005 02/11/2005 02/23/2005 02/23/2005 02/28/2005 02/28/2005 03/01/2005 03/30/2005
04/18/2005
04/19/2005
04/19/2005 04/19/2005 05/17/2005
05/18/2005

3 LETTER REASSIGNING CASE. Case reassigned to Judge Walker D. Miller for all further proceedings. Judge Zita L. Weinshienk is no longer assigned to case. (gms, ) (Entered: 01/14/2005)
4 WAIVER OF SERVICE Returned Executed by all plaintiffs. El Paso Pension Plan waiver sent on 12/29/2004, accepted by Steven C. Meisgeier, Esq, answer due 2/28/2005. (pap, ) (Entered: 02/15/2005)
5 MOTION for Extension of Time to Plead or Respond to the 1 Complaint to 3/30/05 by Defendants El Paso Corporation, El Paso Pension Plan. (gms, ) (Entered: 02/24/2005)
6 Corporate Disclosure by El Paso Corporation, El Paso Pension Plan. (gms, ) (Entered: 02/24/2005)
7 ORDER REFERRING CASE to Magistrate Judge O. Edward Schlatter; R16,stat,stlmt,pt,pto (dlb, ) (Entered: 03/01/2005)
8 MINUTE ORDER granting 5 MOTION for Extension of Time to Plead or Respond to the 1 Complaint to 3/30/05 by Defendants El Paso Corporation, El Paso Pension Plan. Answer due 3/30/2005 by Judge Walker D. Miller on 2/28/05. (dlb, ) (Entered: 03/01/2005)
9 MINUTE ORDER setting Scheduling/Planning Conference set for 4/27/2005 10:00 AM in Courtroom A 601 before Magistrate Judge O. Edward Schlatter by Magistrate Judge O. Edward Schlatter on 3/1/05. (dlb, ) (Entered: 03/02/2005)
10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss the complaint for failure to exhaust administrative remedies and to dismiss defendant El Paso Pension Plan by Defendants El Paso Corporation, El Paso Pension Plan. (dlb, ) (Entered: 03/31/2005)
11 Plas' Unopposed MOTION for Extension of Time to File Opposition (Response) to dfts' mtn for partial dismissal to 5/20/05 re: 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss the complaint for failure to exhaust administrative remedies and to dismiss defendant El Paso Pension Plan by Defendants El Paso Corporation, El Paso Pension Plan.(dlb, ) (Entered: 04/20/2005)
12 MEMORANDUM referring to Magistrate Judge Schlatter : 11 MOTION for Extension of Time to File Response/Reply as to 10 MOTION to Dismiss MOTION for More Definite Statement MOTION for More Definite Statement MOTION to Strike 1 Complaint MOTION to Strike 1 Complaint filed by Wayne Tomlinson,, Alice Ballesteros,, Gary Muckelroy, by Judge Walker D. Miller on 4/19/05. (dlb, ) (Entered: 04/21/2005)
13 MINUTE ORDER resetting Scheduling Conference set for 5/27/2005 09:30 AM in Courtroom A 601 before Magistrate Judge O. Edward Schlatter by Magistrate Judge O. Edward Schlatter on 4/19/05. (dlb, ) (Entered: 04/21/2005)
14 MINUTE ORDER granting 11 Plas' Unopposed MOTION for Extension of Time to File Opposition (Response) to dfts' mtn for partial dismissal to 5/20/05 re: 10 by Magistrate Judge O. Edward Schlatter on 4/19/05. (dlb, ) (Entered: 04/21/2005)
15 Pla's MOTION for Extension of Time to File Opposition (Response) to 5/31/05 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss the complaint for failure to exhaust administrative remedies and to dismiss defendant El Paso Pension Plan by Defendants El Paso Corporation, El Paso Pension Plan.(dlb, ) (Entered: 05/18/2005)
16 MEMORANDUM referring to Magistrate Judge Schlatter : 15 Pla's MOTION for Extension of Time to File Opposition (Response) to 5/31/05 10 MOTION to

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 5 of 42

05/19/2005 05/19/2005 05/25/2005 05/26/2005 05/26/2005 05/27/2005
05/27/2005 05/27/2005

Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: exhaust administrative remedies and to dismiss defendant El Paso Pension Plan by Defendants El Paso Corporation, El Paso Pension Plan by Judge Walker D. Miller on 5/18/05. (dlb, ) (Entered: 05/19/2005)
17 Dfts' Opposition (RESPONSE) to Second 15 Pla's MOTION for Extension of Time to File Opposition (Response) to 5/31/05 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss the complaint for failure to exhaust administrative remedies and to dismiss defendant El Paso Pension Plan by Defendants El Paso Corporation, El Paso Pension Plan. (dlb, ) (Entered: 05/19/2005)
18 MINUTE ORDER granting 15 Pla's MOTION for Extension of Time to File Opposition (Response) to 5/31/05 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss the complaint for failure to exhaust administrative remedies and to dismiss defendant El Paso Pension Plan by Defendants El Paso Corporation, El Paso Pension Plan by Magistrate Judge O. Edward Schlatter on 5/19/05. (dlb, ) (Entered: 05/23/2005)
19 Plas' Memorandum of Law (BRIEF) in Opposition to 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss the complaint for failure to exhaust administrative remedies and to dismiss defendant El Paso Pension Plan by Defendants El Paso Corporation, El Paso Pension Plan. (dlb, ) (Entered: 05/26/2005)
20 Plas' Memorandum of Law (BRIEF) in Opposition re 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss the complaint for failure to exhaust administrative remedies and to dismiss defendant El Paso Pension Plan by Defendants El Paso Corporation, El Paso Pension Plan. [Unpubished Decisions] (dlb, ) (Entered: 05/27/2005)
21 MOTION Protective Order staying discovery until disposition of dfts' pretrial motions or in the alternative MOTION for Order limiting all discovery to the notice allegations pleadings in Claims IV and V by Defendants El Paso Corporation, El Paso Pension Plan. (dlb, ) (Entered: 05/27/2005)
22 Minute Entry for proceedings held before Judge O. Edward Schlatter : Scheduling Conference held on 5/27/2005 re 21 MOTION Protective Order staying discovery until disposition of dfts' pretrial motions or in the alternative MOTION for Order limiting all discovery to the notice allegations pleadings in Claims IV and V by Defendants El Paso Corporation, El Paso Pension Plan. The Court will not rule on the motion at this time. Pla's response due within ten (10) days of this date. Dfts shall then have five (5) days to file a reply. Dfts' shall make initial disclosures by 6/10/05. Discovery cut off: 3/31/06; dispositive motion deadline: 4/28/06; prtrial conference, 9/11/06 at 9:00 a.m.; settlement conference to be set at a later date. (Court Reporter FTR − Ctrm A601.) (dlb, ) (Entered: 05/31/2005)
23 SCHEDULING ORDER: Discovery due by 3/31/2006. Dispositive Motions due by 4/28/2006. Proposed Pretrial Order due by 9/6/2006. Final Pretrial Conference set for 9/11/2006 09:00 AM in Courtroom A 601 before Magistrate Judge O. Edward Schlatter. Signed by Magistrate Judge O. Edward Schlatter on 5/27/05. (dlb, ) (Modified on 7/25/2005 to correct typo) (dlb, ). (Entered: 05/31/2005)
24 MINUTE ORDER : Final Pretrial Conference set for 9/11/2006 09:00 AM in Courtroom A 601 before Magistrate Judge O. Edward Schlatter by Magistrate Judge O. Edward Schlatter on 5/27/05. (dlb, ) (Entered: 05/31/2005)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 6 of 42

05/31/2005 05/31/2005 06/13/2005 06/13/2005 06/14/2005
06/17/2005 06/21/2005 06/22/2005 06/23/2005 06/23/2005

25 MEMORANDUM referring to Magistrate Judge Schlatter : 21 MOTION Protective Order staying discovery until disposition of dfts' pretrial motions or in the alternative MOTION for Order limiting all discovery to the notice allegations pleadings in Claims IV and V by Defendants El Paso Corporation, El Paso Pension Plan by Judge Walker D. Miller on 5/31/05. (dlb, ) (Entered: 06/01/2005)
26 MINUTE ORDER re: 21 MOTION Protective Order staying discovery until disposition of dfts' pretrial motions or in the alternative MOTION for Order limiting all discovery to the notice allegations pleadings in Claims IV and V by Defendants El Paso Corporation, El Paso Pension Plan. Pla's responses due by 6/13/05 by Magistrate Judge O. Edward Schlatter on 5/31/05. (dlb, ) (Entered: 06/01/2005)
27 Plas' Memorandum of Law (BRIEF) in Opposition to 21 MOTION Protective Order staying discovery until disposition of dfts' pretrial motions or in the alternative MOTION for Order limiting all discovery to the notice allegations pleadings in Claims IV and V by Defendants El Paso Corporation, El Paso Pension Plan. (dlb, ) (Entered: 06/14/2005)
28 Pla's Unpublished Decisions (SUPPLEMENT) to 27 Plas' Memorandum of Law (BRIEF) in Opposition to 21 MOTION Protective Order staying discovery until disposition of dfts' pretrial motions or in the alternative MOTION for Order limiting all discovery to the notice allegations pleadings in Claims IV and V by Defendants El Paso Corporation, El Paso Pension Plan. (dlb, ) (Entered: 06/14/2005)
29 MINUTE ORDER re: 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss the complaint for failure to exhaust administrative remedies and to dismiss defendant El Paso Pension Plan by Defendants El Paso Corporation, El Paso Pension Plan. The deadline for filing a reply shall be extended to 6/23/05 by Magistrate Judge O. Edward Schlatter on 6/14/05. (dlb, ) (Entered: 06/15/2005)
30 Defendants' REPLY Memorandum in further support of their 21 MOTION for a Protective Order Staying Discovery Pending Disposition of Defedants' Pleading Motion or in the Alternative. Limiting Discovery to Claim IV and V filed by Defendants El Paso Corporation, El Paso Pension Plan. (djs, ) (Entered: 06/17/2005)
31 ORDER granting 21 MOTION Protective Order staying discovery until disposition of dfts' pretrial motions or in the alternative MOTION for Order limiting all discovery to the notice allegations pleadings in Claims IV and V by Defendants El Paso Corporation, El Paso Pension Plan. All discovery is hereby stayed pending ruling on dfts' motion to dismiss. Signed by Magistrate Judge O. Edward Schlatter on 6/21/05. (dlb, ) (Entered: 06/21/2005)
32 AMENDED ORDER re: 31 ORDER granting 21 MOTION Protective Order staying discovery until disposition of dfts' pretrial motions or in the alternative MOTION for Order limiting all discovery to the notice allegations pleadings in Claims IV and V by Defendants El Paso Corporation, El Paso Pension Plan. All discovery is hereby stayed pending ruling on dfts' motion to dismiss. Signed by Magistrate Judge O. Edward Schlatter on 6/22/05. (dlb, ) (Entered: 06/22/2005)
33 MOTION to Strike 19 Brief in Opposition to Motion, Defendants' Objections and Motion to Strike Extra Judicial Statements in Plaintiffs' Opposition Brief by Defendants El Paso Corporation, El Paso Pension Plan. (Martin, Raymond) (Entered: 06/23/2005)
34 REPLY to Response to Motion re 10 MOTION to Dismiss MOTION for More Definite Statement MOTION for More Definite Statement MOTION to Strike 1 Complaint MOTION to Strike 1 Complaint filed by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit A to Defendants' Reply Memorandum of Law# 2 Exhibit B to Defendants' Reply Memorandum of Law)(Martin, Raymond) (Entered: 06/23/2005)

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06/29/2005 07/07/2005 07/13/2005 08/19/2005 09/07/2005 09/08/2005 09/09/2005 09/16/2005 09/19/2005 11/01/2005
11/01/2005
11/02/2005
11/10/2005
11/22/2005

35 Mail Returned as Undeliverable re: 31 Order Addressed to Chritopher Rillo. (dlb, ) (Entered: 06/30/2005)
36 BRIEF in Opposition re 33 MOTION to Strike 19 Brief in Opposition to Motion, Defendants' Objections and Motion to Strike Extra Judicial Statements in Plaintiffs' Opposition Brief filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce, Stephen) (Entered: 07/07/2005)
37 Mail Returned as Undeliverable Addressed to Christopher Rillo. (dlb, ) (Entered: 07/13/2005)
38 NOTICE of Change of Address for Christopher J. Rillo by Raymond W. Martin (Martin, Raymond) (Entered: 08/19/2005)
39 MOTION to Withdraw as Attorney (Rachel Shaffer) by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Proposed Order (PDF Only) to Motion for Withdrawal of Counsel)(Martin, Raymond) (Entered: 09/07/2005)
40 MEMORANDUM referring to Magistrate Judge Schlatter : 39 MOTION to Withdraw as Attorney (Rachel Shaffer) filed by El Paso Corporation,, El Paso Pension Plan, by Judge Walker D. Miller on 9/8/05. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 09/08/2005)
41 ORDER granting 39 MOTION to Withdraw as Attorney (Rachel Shaffer) by Defendants El Paso Corporation, El Paso Pension Plan. Signed by Magistrate Judge O. Edward Schlatter on 9/9/05. (dlb, ) (Entered: 09/09/2005)
42 Letter from Stephen R. Bruce (dlb, ) (Entered: 09/16/2005)
43 RESPONSE to 42 Letter to the Honorable O. Edward Schlatter by Defendants El Paso Corporation, El Paso Pension Plan. (Martin, Raymond) (Entered: 09/19/2005)
44 NOTICE of Supplemental Authority re 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss the complaint for failure to exhaust administrative remedies and to dismiss by Defendants El Paso Corporation, El Paso Pension Plan (Rillo, Christopher) (Modified on 11/2/2005 to clarify entry) (dlb, ). (Modified on 11/2/2005 to indicate STRICKEN pursuant to minute order)(dlb, ). (Entered: 11/01/2005)
45 MINUTE ORDER STRIKING for failure to comply with D.C.Colo.LCivR 5.6 44 NOTICE of Supplemental Authority re 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss the complaint for failure to exhaust administrative remedies and to dismiss by Defendants El Paso Corporation, El Paso Pension Plan by Judge Walker D. Miller on 11/1/05. (dlb, ) (Entered: 11/02/2005)
46 NOTICE of Supplemental Authority re 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss the complaint for failure to exhaust administrative remedies and to dismiss by Defendants El Paso Corporation, El Paso Pension Plan (Rillo, Christopher) (Modified on 11/3/2005 to clarify entry) (dlb, ). (Entered: 11/02/2005)
47 STATEMENT of Supplemental Authority and response to Dfts' 46 NOTICE of Supplemental Authority re 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss the complaint for failure to exhaust administrative remedies and to dismiss by Defendants by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit A)(Roseman, Barry) (Modified on 11/10/2005 to correct linkage and clarify entry) (dlb, ). (Entered: 11/10/2005)
48 NOTICE of Supplemental Authority re MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 8 of 42

02/08/2006
03/30/2006 04/13/2006 04/19/2006 04/19/2006 04/20/2006 04/20/2006 08/11/2006 08/14/2006
08/15/2006
08/16/2006

for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss the complaint for failure to exhaust administrative remedies and to dismiss defendant El Paso Pension Plan by Defendants El Paso Corporation, El Paso Pension Plan (Rillo, Christopher) (Modified on 11/23/2005 to clarify entry) (dlb, ). (Entered: 11/22/2005)
49 REASSIGNING MAGISTRATE JUDGE. Upon the retirement of Magistrate Judge O. Edward Schlatter, this case has been reassigned and is now referred to Michael E. Hegarty, effective February 15, 2006. All future pleadings should reference Magistrate Judge Hegarty at the end of the civil action number (such as 05−cv−00500−LTB−MEH). The dates and times for all previously scheduled matters will be maintained and will now be handled by Magistrate Judge Hegarty in Courtroom A601. His chambers are located in Room A651. His telephone number is 303−844−4507. (Text only entry − no document attached) (gms, ) (Entered: 02/08/2006)
50 MINUTE ORDER denying 33 MOTION to Strike 19 Brief in Opposition to Motion, Defendants' Objections and Motion to Strike Extra Judicial Statements in Plaintiffs' Opposition Brief by Defendants by Judge Walker D. Miller on 3/30/06. (dlb, ) (Entered: 03/30/2006)
51 STATEMENT re 10 MOTION to Dismiss MOTION for More Definite Statement MOTION for More Definite Statement MOTION to Strike 1 Complaint MOTION to Strike 1 Complaint (Supplemental Authority) by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit A)(Roseman, Barry) (Entered: 04/13/2006)
52 Unopposed MOTION for Leave to File A Response to Notice of New Authority by Defendant El Paso Corporation. (Rillo, Christopher) (Entered: 04/19/2006)
53 MEMORANDUM referring to Magistrate Judge Hegarty : 52 Unopposed MOTION for Leave to File A Response to Notice of New Authority filed by El Paso Corporation, by Judge Walker D. Miller on 4/19/06. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 04/19/2006)
54 RESPONSE to 48 Notice (Other), Notice (Other) by Defendants El Paso Corporation, El Paso Pension Plan. (Rillo, Christopher) (Entered: 04/20/2006)
55 Minute ORDER granting Defendants' Unopposed 52 Motion for Leave to Respond to Plaintiffs' Notice of New Authority. Defendants are directed to electronically file the response, by Magistrate Judge Michael E. Hegarty on 4/20/06. (gms, ) (Entered: 04/20/2006)
56 NOTICE re 10 MOTION to Dismiss MOTION for More Definite Statement MOTION for More Definite Statement MOTION to Strike 1 Complaint MOTION to Strike 1 Complaint (Notice of Supplemental Authority in Further Support of) by Defendants El Paso Corporation, El Paso Pension Plan (Attachments: # 1 Exhibit A# 2 Exhibit B)(Martin, Raymond) (Entered: 08/11/2006)
57 Unopposed MOTION to File Response to Defendants' 56 Notice of Supplementary Authority to 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Roseman, Barry) (Modified on 8/15/2006 to add linkage) (dln, ). (Entered: 08/14/2006)
58 Docket Annotation re: 57 Unopposed MOTION to File Response to Defendants' 56 Notice of Supplementary Authority to 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss by Plaintiff. [Entry modified to add linkage] Text only entry − no document attached. (dln, ) (Entered: 08/15/2006)
59 MINUTE ORDER Granting if filed within 10 days 57 Plaintiffs' Unopposed MOTION to File Response to Defendants' 56 Notice of Supplementary Authority to 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 9 of 42

08/30/2006 09/05/2006 09/07/2006 09/08/2006 09/11/2006
09/11/2006 09/12/2006 09/12/2006
09/13/2006 09/28/2006 10/05/2006 10/05/2006

claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss. Entered by Judge Walker D. Miller on 8/16/06. (pap, ) (Entered: 08/16/2006)
60 NOTICE re 56 Notice (Other), Notice (Other) Response to Defendants' Notice of Supplemental Authority by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy (Attachments: # 1 Exhibit)(Bruce, Stephen) (Entered: 08/30/2006)
61 NOTICE re 60 Notice (Other) Supplemental Response to Defendants' Notice of Supplemental Authority by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy (Bruce, Stephen) (Entered: 09/05/2006)
62 MINUTE ORDER: Final Pretrial Conference set for 09/11/2006 is CONVERTED to a Telephonic Status Conference set for 9/11/2006 09:00 AM before Magistrate Judge Michael E. Hegarty by Judge Michael E. Hegarty on 9/6/06. (dln, ) (Entered: 09/07/2006)
63 NOTICE re 61 Notice (Other), 60 Notice (Other) application to respond by Defendants El Paso Corporation, El Paso Pension Plan (Rillo, Christopher) (Entered: 09/08/2006)
64 Minute Entry/Minute Order for proceedings held before Magistrate Judge Michael E. Hegarty: Telephonic Status Conference held on 9/11/2006. Scheduling Conference set for 10/25/2006 09:00 AM in Courtroom A 601 before Magistrate Judge Michael E. Hegarty. The proposed Scheduling Order shall be submitted to the Court by e−mail and to the Clerk of the Court for electronic filing on October 23, 2006, by noon (12:00 p.m.) Denver time.(Court Reporter FTR − C. Coomes) (mehcd) (Entered: 09/11/2006)
65 Docket Annotation re: 63 NOTICE re 61 Notice (Other), 60 Notice (Other) application to respond by Defendants filed in error. [Document to be refiled by Counsel as Motion for leave; Exhibits as attachments and a proposed document]. Text only entry − no document attached. (dln, ) (Entered: 09/11/2006)
66 Unopposed MOTION for Leave to File Reply to Plaintiffs' August 30, 2006 Responses to Defendants' Notice of Supplemental Authority by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Proposed Document Defendants' Reply to Plaintiffs' Responses Filed on August 30, 2006 and September 5, 2006)(Martin, Raymond) (Entered: 09/12/2006)
68 REPLY to Plaintiffs Supplemental Responses 60 and 61 re: 10 Notice of Supplementary Authority to 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss by Defendants El Paso Corporation, El Paso Pension Plan. (dln, ) (Entered: 09/13/2006)
67 MINUTE ORDER granting 66 Unopposed MOTION for Leave to File Reply to Plaintiffs' August 30, 2006 Responses to Defendants' Notice of Supplemental Authority by Defendants and the same is accepted for filing by Judge Walker D. Miller on 9/12/06.(dln, ) (Entered: 09/13/2006)
69 NOTICE re 10 MOTION to Dismiss MOTION for More Definite Statement MOTION to Strike 1 Complaint MOTION to Strike 1 Complaint by Defendants El Paso Corporation, El Paso Pension Plan (Attachments: # 1 Defendants' Notice of Supplementary Authority in Support of Motion# 2)(Rillo, Christopher) (Entered: 09/28/2006)
70 RESPONSE to 69 NOTICE re 10 MOTION to Dismiss MOTION for More Definite Statement MOTION to Strike 1 Complaint MOTION to Strike 1 Complaint by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Roseman, Barry) (Modified on 10/6/2006 to add linkage)(dln, ). (Entered: 10/05/2006)
71 Unopposed MOTION for Leave to File Response to Defendants' Notice of Supplemental Authority by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Roseman, Barry) (Entered: 10/05/2006)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 10 of 42

10/11/2006 10/16/2006 10/23/2006 10/24/2006 10/24/2006 10/25/2006
10/25/2006 11/01/2006 11/02/2006
11/03/2006
11/03/2006 11/13/2006

72 MOTION for Leave to File A Reply to Plaintiffs' October 5 Response to Notice of New Authority by Defendant El Paso Corporation. (Attachments: # 1 Proposed Document)(Rillo, Christopher) (Entered: 10/11/2006)
73 RESPONSE to Motion re 72 MOTION for Leave to File A Reply to Plaintiffs' October 5 Response to Notice of New Authority filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce, Stephen) (Entered: 10/16/2006)
74 Proposed Scheduling Order by Defendants El Paso Corporation, El Paso Pension Plan, Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce, Stephen) (Entered: 10/23/2006)
75 MINUTE ORDER granting 71 Unopposed MOTION for Leave to File Response to Defendants' Notice of Supplemental Authority by Plaintiffs by Judge Walker D. Miller on 10/23/06.(dln, ) (Entered: 10/24/2006)
76 Proposed Scheduling Order (Corrected) by Defendants El Paso Corporation, El Paso Pension Plan, Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce, Stephen) (Entered: 10/24/2006)
77 Courtroom Minutes/Minute Order for proceedings held before Magistrate Judge Michael E. Hegarty. Scheduling Conference held on 10/25/2006: Settlement Conference set for 9/10/2007 at 10:00 a.m. in Courtroom A 601 before Magistrate Judge Michael E. Hegarty; Final Pretrial Conference set for 11/27/2007 at 9:00 a.m. in Courtroom A 601 before Magistrate Judge Michael E. Hegarty. (Court Reporter FTR − Ben Van Dyke) (paccd) (Entered: 10/25/2006)
78 SCHEDULING ORDER: Discovery due by 8/31/2007.,Dispositive Motions due by 9/30/2007., Settlement Conference set for 9/10/2007 10:00 AM before Magistrate Judge Michael E. Hegarty., Final Pretrial Conference set for 11/27/2007 09:00 AM before Magistrate Judge Michael E. Hegarty. Signed by Judge Michael E. Hegarty on 10/25/06. (dln, ) (Entered: 10/25/2006)
79 MINUTE ORDER granting 72 MOTION for Leave to File A Reply to Plaintiffs' October 5 Response to Notice of New Authority by Defendant by Judge Walker D. Miller on 11/1/06.(dln, ) (Entered: 11/01/2006)
80 Plaintiffs' Third STATEMENT of Suppelemtnal Authority re 19 Plas' Memorandum of Law (BRIEF) in Opposition to 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss the complaint for failure to exhaust administrative remedies and to dismiss (Supplemental Authorities) by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce, Stephen) (Modified on 11/3/2006 to correct linkage) (dln, ). (Entered: 11/02/2006)
81 Docket Annotation re: 80 Plaintiffs' Third STATEMENT of Suppelemtnal Authority re 19 Plas' Memorandum of Law (BRIEF) in Opposition to 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss the complaint for failure to exhaust administrative remedies and to dismiss (Supplemental Authorities). [Entry modified to correct linkage]. Text only entry − no document attached. (dln, ) (Entered: 11/03/2006)
82 Minute Entry/Minute Order for proceedings held before Magistrate Judge Michael E. Hegarty : Discovery Hearing held on 11/3/2006. (Court Reporter FTR − C. Coomes) (mehcd) (Entered: 11/03/2006)
84 TRANSCRIPT of Telephonic Discovery Hearing held on November 3, 2006 before Judge Michael E. Hegarty. Prepared by: Avery/Woods. Pages: 1 − 15. (certified copy) Text Only Entry − Per statute, copies of transcripts are available for inspection in the clerk's office. Parties interested in a copy may contact the court reporter or, in the case of a transcript prepared from a digital−audio taped record, the courtroom deputy for the judicial officer. (dln, ) (Entered: 11/15/2006)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 11 of 42

11/14/2006
11/15/2006 11/15/2006 11/16/2006 12/13/2006 12/15/2006 12/15/2006 12/18/2006 12/18/2006 12/20/2006 12/21/2006 12/26/2006 12/26/2006 12/26/2006 01/19/2007

83 NOTICE of Defendants' Unopposed Application to Respond to Plaintiffs' Third Submission of Supplementary Authority by Defendants El Paso Corporation, El Paso Pension Plan (Attachments: # 1 Proposed Document Response to Plaintiffs' Third Submission of Supplementary Authority)(Rillo, Christopher) (Entered: 11/14/2006)
85 Docket Annotation re: 83 NOTICE of Defendants' Unopposed Application to Respond to Plaintiffs' Third Submission of Supplementary Authority by Defendants. [Document to be refiled by Counsel as a Motion for Leave to file]. Text only entry − no document attached. (dln, ) (Entered: 11/15/2006)
86 Unopposed MOTION for Leave to File Reply to Plaintiffs' Third Notice of Supplementary Authority by Defendant El Paso Corporation. (Attachments: # 1 Proposed Document)(Rillo, Christopher) (Entered: 11/15/2006)
87 Unopposed MOTION for Leave to Respond to Defs. Reply to Notice of Suppl. Auth. by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Document Plaintiffs' Response to Defs. Reply to Notice of Suppl. Auth.)(Bruce, Stephen) (Entered: 11/16/2006)
88 NOTICE re 10 MOTION to Dismiss MOTION for More Definite Statement MOTION to Strike 1 Complaint MOTION to Strike 1 Complaint supplementary authority by Defendants El Paso Corporation, El Paso Pension Plan (Attachments: # 1 Exhibit unpublished court decision)(Rillo, Christopher) (Entered: 12/13/2006)
89 Joint MOTION for Protective Order by All Parties Filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce, Stephen) (Entered: 12/15/2006)
90 MEMORANDUM regarding 89 Joint MOTION for Protective Order by All Parties Filed filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. (Text Only Entry − No Document Attached)Motions referred to Magistrate Judge Michael E. Hegarty by Judge Walker D. Miller on 12/15/06. (wdmsec, ) (Entered: 12/15/2006)
91 Docket Annotation re: 89 Motions terminated: 89 Joint MOTION for Protective Order by All Parties Filed [Document is a Proposed Protective Order − to be refiled by Counsel with appropriate motion]. Text only entry − no document attached. (dln, ) (Entered: 12/18/2006)
92 NOTICE of Supplemental Authority (Fourth) by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy (Attachments: # 1 Engers v. AT2 In re Citigroup)(Bruce, Stephen) (Entered: 12/18/2006)
93 Unopposed MOTION for Leave to Reply to Plaintiffs' Fourth Statement of Supplemental Authority by Defendant El Paso Corporation. (Attachments: # 1 Proposed Document Defendants' Response to Plaintiff's Fourth Statement of Supplemental Authority)(Rillo, Christopher) (Entered: 12/20/2006)
94 Joint MOTION for Protective Order Regarding Confidentiality of Certain Documents by Defendants El Paso Corporation, El Paso Pension Plan, Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 12/21/2006)
95 MEMORANDUM regarding 94 Joint MOTION for Protective Order Regarding Confidentiality of Certain Documents by Defendants. Motions referred to Magistrate Judge Michael E. Hegarty by Judge Walker D. Miller on 12/26/06. (Text Only Entry − No Document Attached)(dln, ) (Entered: 12/26/2006)
96 MINUTE ORDER granting 94 Joint MOTION for Protective Order Regarding Confidentiality of Certain Documents by Defendants by Magistrate Judge Michael E. Hegarty on 12/26/06.(dln, ) (Entered: 12/26/2006)
97 PROTECTIVE ORDER REGARDING CONFIDENTIALITY OF CERTAIN DOCUMENTS. Signed by Judge Michael E. Hegarty on 12/26/06. (dln, ) (Entered: 12/26/2006)
98 Joint MOTION to Amend/Correct/Modify 78 Scheduling Order, by Defendants El Paso Corporation, El Paso Pension Plan, Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 12 of 42

01/19/2007 01/22/2007 01/22/2007 02/01/2007 02/16/2007 02/16/2007 02/20/2007
02/20/2007 03/19/2007 03/22/2007

Only))(Rillo, Christopher) (Entered: 01/19/2007)
99 MEMORANDUM regarding 98 Joint MOTION to Amend/Correct/Modify 78 Scheduling Order, filed by El Paso Corporation, El Paso Pension Plan, Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. (Text Only Entry − No Document Attached)Motions referred to Magistrate Judge Michael E. Hegarty by Judge Walker D. Miller on 1/19/07. (wdmsec, ) (Entered: 01/19/2007)
100 MINUTE ORDER granting 98 Joint MOTION to Amend/Correct/Modify 78 Scheduling Order. Deadline for Class Certification 2/19/07; deadline for joinder of parties 2/19/07; Pla's expert reports 4/30/07; Dft's expert reports 6/30/07; Rebuttal experts 8/31/07; Expert depositions 9/30/07; Discovery 9/30/07; Dispositive motions 10/31/07. Settlement Conference RESET to 10/11/07 at 1:30 p.m. by Magistrate Judge Michael E. Hegarty on 1/22/07.(dln, ) (Entered: 01/22/2007)
101 Utility Setting/Resetting Deadlines/Hearings: Discovery due by 9/30/2007. Dispositive Motions due by 10/31/2007. Proposed Pretrial Order due by 12/12/2007. Final Pretrial Conference set for 12/19/2007 09:30 AM before Magistrate Judge Michael E. Hegarty. Settlement Conference set for 10/11/2007 01:30 PM before Magistrate Judge Michael E. Hegarty. [Text only entry − no document attached]. (dln, ) (Entered: 01/22/2007)
102 NOTICE re 10 MOTION to Dismiss MOTION for More Definite Statement MOTION to Strike 1 Complaint MOTION to Strike 1 Complaint Supplemental Authority by Defendants El Paso Corporation, El Paso Pension Plan (Attachments: # 1 Exhibit Ex. A# 2 Exhibit Ex. B)(Rillo, Christopher) (Entered: 02/01/2007)
103 Joint MOTION to Amend/Correct/Modify 100 Order on Motion to Amend/Correct/Modify, Scheduling Order by Defendants El Paso Corporation, El Paso Pension Plan, Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 02/16/2007)
104 MEMORANDUM regarding 103 Joint MOTION to Amend/Correct/Modify 100 Order on Motion to Amend/Correct/Modify, Scheduling OrderJoint MOTION to Amend/Correct/Modify 100 Order on Motion to Amend/Correct/Modify, Scheduling Order filed by El Paso Corporation, El Paso Pension Plan, Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. (Text Only Entry − No Document Attached)Motions referred to Magistrate Judge Michael E. Hegarty by Judge Walker D. Miller on 2/16/07. (wdmsec, ) (Entered: 02/16/2007)
105 MINUTE ORDER granting 103 Joint MOTION to Amend/Correct/Modify 100 Order on Motion to Amend/Correct/Modify, Scheduling Order. Motions for Class Certification 3/19/2007; Joinder of Parties 03/19/2007; Pla's Expert Reports 05/30/2007; dft's Expert Reports 7/30/2007; Rebuttal Experts 10/1/2007; Expert Depositions 10/31/2007; Discovery Cut−off 10/31/2007; Dispositive Motions 11/30/2007. Settlement Conference RESET to 11/15/2007 at 1:30 p.m. and Final Pretrial Conference RESET to 01/17/2008 at 9:30 a.m. by Magistrate Judge Michael E. Hegarty on 2/20/07.(dln, ) (Entered: 02/20/2007)
106 Utility Setting/Resetting Deadlines/Hearings: Discovery due by 10/31/2007. Dispositive Motions due by 11/30/2007. Final Pretrial Conference set for 1/17/2008 09:30 AM before Magistrate Judge Michael E. Hegarty. Settlement Conference set for 11/15/2007 01:30 PM before Magistrate Judge Michael E. Hegarty. [Text only entry − no document attached]. (dln, ) (Entered: 02/20/2007)
107 MOTION to Certify Class and Approve ADEA Action by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only) with ADEA Notice and Consent Form# 2 Memorandum in Support# 3 Exhibit 1# 4 Exhibit 2# 5 Exhibit 3# 6 Exhibit 4# 7 Exhibit 5# 8 Exhibit 6# 9 Exhibit 7# 10 Exhibit 8# 11 Exhibit 9# 12 Exhibit 10)(Bruce, Stephen) (Entered: 03/19/2007)
108 ORDER: 86 Unopposed MOTION for Leave to File Reply to Plaintiffs' Third Notice of Supplementary Authority by Defendant is granted. 87 Unopposed MOTION for Leave to Respond to Defs. Reply to Notice of Suppl. Auth. by Plaintiffs is granted. 93 Unopposed MOTION for Leave to Reply to Plaintiffs'

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 13 of 42

03/27/2007 03/27/2007 04/05/2007 04/05/2007 04/06/2007 04/06/2007 04/06/2007 04/06/2007 04/09/2007
04/09/2007
04/09/2007

Fourth Statement of Supplemental Authority by Defendant is granted. 10 MOTION to Dismiss claims I and III of the complaint for failure to state a claim upon which relief can be granted; MOTION for More Definite Statement on claim II; MOTION to Strike Jury Demand re: 1 Complaint; to dismiss the complaint for failure to exhaust administrative remedies and to dismiss by Defendants is granted to the extent it seeks dismissal of Plaintiffs Third Claim, and otherwise denied. This case remains pending for trial on Plaintiffs 1st, 2nd, 4th, and 5th claims. Signed by Judge Walker D. Miller on 3/22/07.(dln, ) (Entered: 03/22/2007)
109 NOTICE of Entry of Appearance by Darren E. Nadel on behalf of El Paso Corporation, El Paso Pension Plan (Nadel, Darren) (Entered: 03/27/2007)
110 NOTICE of Entry of Appearance by Jill M. Brady on behalf of El Paso Corporation, El Paso Pension Plan (Brady, Jill) (Entered: 03/27/2007)
111 Unopposed MOTION for Extension of Time to File Response/Reply To Plaintiffs' Complaint by Defendants El Paso Corporation, El Paso Pension Plan. (Brady, Jill) (Entered: 04/05/2007)
112 Unopposed MOTION for Extension of Time to File Response/Reply 1 Class Action COMPLAINT by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Brady, Jill) (Modified on 4/6/2007 to add linkage) (dln, ). (Entered: 04/05/2007)
113 Docket Annotation Motions terminated: 111 Unopposed MOTION for Extension of Time to File Response/Reply To Plaintiffs' Complaint by Defendants. [Refiled by #112]. Text only entry − no document attached. (dln, ) (Entered: 04/06/2007)
114 MEMORANDUM regarding 112 Unopposed MOTION for Extension of Time to File Response/Reply Plaintiffs' Complaint filed by El Paso Corporation, El Paso Pension Plan. (Text Only Entry − No Document Attached)Motions referred to Magistrate Judge Michael E. Hegarty by Judge Walker D. Miller on 4/6/07. (wdmsec, ) (Entered: 04/06/2007)
115 Minute ORDER granting Defendants' Unopposed 112 Motion for Extension of Time to File Response to Plaintiffs' Complaint to 4/16/07, by Magistrate Judge Michael E. Hegarty on 4/6/07.(gms, ) (Entered: 04/06/2007)
116 Utility Setting/Resetting Deadlines/Hearings: El Paso Corporation answer due 4/16/2007; El Paso Pension Plan answer due 4/16/2007, pursuant to minute order of 4/6/07. Text only entry − no document attached. (gms, ) (Entered: 04/06/2007)
117 Joint MOTION for Extension of Time to File Response/Reply as to 105 Order on Motion to Amend/Correct/Modify,, 107 MOTION to Certify Class and Approve ADEA Action And to Amend Scheduling Order by Defendants El Paso Corporation, El Paso Pension Plan, Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Nadel, Darren) (Entered: 04/09/2007)
118 MEMORANDUM regarding 117 Joint MOTION for Extension of Time to File Response/Reply as to 105 Order on Motion to Amend/Correct/Modify,, 107 MOTION to Certify Class and Approve ADEA Action And to Amend Scheduling OrderJoint MOTION for Extension of Time to File Response/Reply as to 105 Order on Motion to Amend/Correct/Modify,, 107 MOTION to Certify Class and Approve ADEA Action And to Amend Scheduling Order filed by El Paso Corporation, El Paso Pension Plan, Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. (Text Only Entry − No Document Attached)Motions referred to Magistrate Judge Michael E. Hegarty. Signed by Judge Walker D. Miller on 4/9/07. (wdmsec, ) (Entered: 04/09/2007)
119 Amended Joint Motion for extension of time to Respond/Reply to 107 MOTION to Certify Class and Approve ADEA Action And to Amend Scheduling Order by Defendants El Paso Corporation, El Paso Pension Plan, Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Nadel, Darren) (Modified on 4/10/2007 to correct linkage and duplicate text) (dln, ). (Entered: 04/09/2007)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 14 of 42

04/10/2007 04/10/2007 04/10/2007 04/10/2007 04/13/2007 04/16/2007 05/09/2007 05/09/2007 05/09/2007 05/09/2007 05/29/2007
05/29/2007

120 MINUTE ORDER denying as moot 117 Joint MOTION for Extension of Time to File Response/Reply as to 105 Order on Motion to Amend/Correct/Modify,, 107 MOTION to Certify Class and Approve ADEA Action And to Amend Scheduling Order by Defendants by Magistrate Judge Michael E. Hegarty on 4/10/07.(dln, ) (Entered: 04/10/2007)
121 Docket Annotation re: 119 Amended Joint Motion for extension of time to Respond/Reply to 107 MOTION to Certify Class and Approve ADEA Action And to Amend Scheduling Order. [Entry modified to correct linkage and remove duplicate text]. Text only entry − no document attached. (dln, ) (Entered: 04/10/2007)
122 MEMORANDUM regarding 119 MOTION for Extension of Time to File Response/Reply filed by El Paso Corporation, El Paso Pension Plan, Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. (Text Only Entry − No Document Attached)Motions referred to Magistrate Judge Michael E. Hegarty by Judge Walker D. Miller on 4/10/07. (wdmsec, ) (Entered: 04/10/2007)
123 Docket Annotation: Motion(s) No Longer Referred: 119 Amended Joint Motion for extension of time to Respond/Reply to 107 MOTION to Certify Class and Approve ADEA Action And to Amend Scheduling Order by Defendants. [Only the portion relating to the Scheduling Order is referred to Magistrate Judge Hegarty for ruling]. Text only entry − no document attached. (dln, ) (Entered: 04/10/2007)
124 MINUTE ORDER granting to 05/09/2007 119 Amended Joint Motion for extension of time to Respond/Reply to 107 MOTION to Certify Class and Approve ADEA Action And to Amend Scheduling Order by Defendants. Plaintiff's expert reports by 06/29/2007; Defendants' expert reports by 08/29/2007 by Magistrate Judge Michael E. Hegarty on 4/13/07.(dln, ) (Entered: 04/13/2007)
125 Defendants' ANSWER to Complaint by El Paso Corporation, El Paso Pension Plan.(Rillo, Christopher) (Entered: 04/16/2007)
126 BRIEF in Opposition re 107 MOTION to Certify Class and Approve ADEA Action filed by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Entered: 05/09/2007)
127 NOTICE re 126 Brief in Opposition to Motion For Class Certification and Conditional Approval of ADEA Collective Action by Defendants El Paso Corporation, El Paso Pension Plan (Attachments: # 1 Exhibit amara# 2 Exhibit Britton# 3 Exhibit Post# 4 # 5 Exhibit Thiebes)(Nadel, Darren) (Entered: 05/09/2007)
128 MOTION for Judgment On the Pleadings Pursuant to Federal Rule of Civil Procedure 12(C) by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C, Part 1# 4 Exhibit Exhibit C, Part 2# 5 Exhibit Exhibit C, Part 3)(Nadel, Darren) (Entered: 05/09/2007)
129 NOTICE re 128 MOTION for Judgment On the Pleadings Pursuant to Federal Rule of Civil Procedure 12(C) MOTION for Judgment On the Pleadings Pursuant to Federal Rule of Civil Procedure 12(C) by Defendants El Paso Corporation, El Paso Pension Plan (Attachments: # 1 Exhibit Richards# 2 Exhibit Richards)(Nadel, Darren) (Entered: 05/09/2007)
130 MOTION for Leave to File the Declaration of Kevin Minor in Support of Defs' Opposition to Pltfs' Motion for Class Certification and Conditional Approval of ADEA Collective Action by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit 1, Declaration of Minor# 2 Exhibit A to Declaration# 3 Exhibit B to Declaration# 4 Exhibit C to Declaration# 5 Exhibit D to Declaration# 6 Exhibit E to Declaration# 7 Exhibit F to Declaration)(Brady, Jill) (Entered: 05/29/2007)
131 REPLY to Response to Motion re 107 MOTION to Certify Class and Approve ADEA Action filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit 11# 2 Exhibit 12# 3 Exhibit 13# 4 Proposed Order (PDF Only) w/ ADEA Notice and Consent to Join Form)(Bruce, Stephen) (Entered: 05/29/2007)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 15 of 42

06/01/2007
06/08/2007 06/15/2007 06/21/2007 06/28/2007 06/28/2007 06/29/2007 07/02/2007 07/02/2007 07/03/2007 07/06/2007 07/16/2007

132 BRIEF in Opposition re 128 MOTION for Judgment On the Pleadings Pursuant to Federal Rule of Civil Procedure 12(C) MOTION for Judgment On the Pleadings Pursuant to Federal Rule of Civil Procedure 12(C) filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6)(Bruce, Stephen) (Modified on 6/8/2007 to indicate STRICKEN pursuant to minute order) (dln, ). (Entered: 06/01/2007)
133 MINUTE ORDER: STRIKING 132 BRIEF in Opposition re 128 MOTION for Judgment On the Pleadings Pursuant to Federal Rule of Civil Procedure 12(C) MOTION for Judgment On the Pleadings Pursuant to Federal Rule of Civil Procedure 12(C) filed by Plaintiffs by Judge Walker D. Miller on 6/8/07. (dln, ) (Entered: 06/08/2007)
134 BRIEF in Opposition re 128 MOTION for Judgment On the Pleadings Pursuant to Federal Rule of Civil Procedure 12(C) MOTION for Judgment On the Pleadings Pursuant to Federal Rule of Civil Procedure 12(C) (Revised Per 6/8/2007 Minute Order) filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6)(Bruce, Stephen) (Entered: 06/15/2007)
135 BRIEF in Opposition re 130 MOTION for Leave to File the Declaration of Kevin Minor in Support of Defs' Opposition to Pltfs' Motion for Class Certification and Conditional Approval of ADEA Collective Action filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit 14# 2 Exhibit 15# 3 Exhibit 16# 4 Exhibit 17# 5 Exhibit 18)(Bruce, Stephen) (Entered: 06/21/2007)
136 MOTION For Extension of Time to File Expert Reports by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 06/28/2007)
137 MEMORANDUM regarding 136 MOTION For Extension of Time to File Expert Reports filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. (Text Only Entry − No Document Attached)Motions referred to Magistrate Judge Michael E. Hegarty by Judge Walker D. Miller on 6/28/07. (wdmsec, ) (Entered: 06/28/2007)
138 RESPONSE to Motion re 136 MOTION For Extension of Time to File Expert Reports filed by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Entered: 06/29/2007)
139 MINUTE ORDER denying without prejudice 136 MOTION For Extension of Time to File Expert Reports by Plaintiffs by Magistrate Judge Michael E. Hegarty on 6/29/07.(dln, ) (Entered: 07/02/2007)
140 REPLY to Response to Motion re 128 MOTION for Judgment On the Pleadings Pursuant to Federal Rule of Civil Procedure 12(C) filed by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit Part 1 to A# 2 Exhibit Part 2 to A# 3 Exhibit Part 3 to A# 4 Exhibit Part 4 to A# 5 Exhibit Part 5 to A# 6 Exhibit Part 6 to A)(Nadel, Darren) (Modified on 7/3/2007 to remove duplicate text) (dln, ). (Entered: 07/02/2007)
141 MOTION to Strike 131 Reply to Response to Motion, In Support of Motion for Class Certification and Conditional Approval of ADEA Collective Action, or in the Alternative, Motion for Leave to File Surreply in Response to Plaintiffs' Reply by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Entered: 07/03/2007)
142 REPLY to Response to Motion re 130 MOTION for Leave to File the Declaration of Kevin Minor in Support of Defs' Opposition to Pltfs' Motion for Class Certification and Conditional Approval of ADEA Collective Action, 107 MOTION to Certify Class and Approve ADEA Action filed by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Entered: 07/06/2007)
143 Unopposed MOTION For Extension of Time to File Expert Reports by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 07/16/2007)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 16 of 42

07/18/2007 07/20/2007 07/24/2007 07/24/2007 07/26/2007 07/27/2007 07/30/2007 08/08/2007 08/09/2007 08/10/2007 08/13/2007 08/14/2007

144 MEMORANDUM regarding 143 Unopposed MOTION For Extension of Time to File Expert Reports filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. (Text Only Entry − No Document Attached)Motions referred to Magistrate Judge Michael E. Hegarty by Judge Walker D. Miller on 7/18/07. (wdmsec, ) (Entered: 07/18/2007)
145 MINUTE ORDER: re: 143 Unopposed MOTION to Amend Scheduling Order to Extend Time to File Expert Reports. Counsel of record are instructed to appear before this Court IN PERSON for Hearing set for 7/31/2007 09:00 AM in Courtroom C203 before Magistrate Judge Michael E. Hegarty by Judge Michael E. Hegarty on 7/20/07. (dln, ) (Entered: 07/20/2007)
146 MOTION to Compel Production by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Memorandum in Support# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 07/24/2007)
147 MEMORANDUM regarding 146 MOTION to Compel Production filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. (Text Only Entry − No Document Attached)Motions referred to Magistrate Judge Michael E. Hegarty by Judge Walker D. Miller on 7/24/07. (wdmsec, ) (Entered: 07/24/2007)
148 BRIEF in Opposition re 141 MOTION to Strike 131 Reply to Response to Motion, In Support of Motion for Class Certification and Conditional Approval of ADEA Collective Action, or in the Alternative, Motion for Leave to File Surreply in Response to Plaintiffs' Reply filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce, Stephen) (Modified on 7/27/2007 to remove duplicate text) (dln, ). (Entered: 07/26/2007)
149 Docket Annotation re: 148 BRIEF in Opposition re 141 MOTION to Strike 131 Reply to Response to Motion, In Support of Motion for Class Certification and Conditional Approval of ADEA Collective Action, or in the Alternative, Motion for Leave to File Surreply in Response to Plaintiffs' Reply filed by Plaintiffs. [Entry modified to remove duplicate text]. Text only entry − no document attached. (dln, ) (Entered: 07/27/2007)
150 MINUTE ORDER setting Motion Hearing for 8/9/2007 09:15 AM in Courtroom C203 before Magistrate Judge Michael E. Hegarty by Magistrate Judge Michael E. Hegarty on 07/30/07. (jjh, ) (Entered: 07/30/2007)
151 RESPONSE to Motion re 146 MOTION to Compel Production filed by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit # 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Nadel, Darren) (Entered: 08/08/2007)
152 Minute Entry for proceedings held before Judge Michael E. Hegarty : Motion Hearing held on 8/9/2007. Taking under advisement 143 Unopposed MOTION For Extension of Time to File Expert Reports by Plaintiffs. Plaintiffs reply to dft's oral argument on Plaintiff's motion to complet due by 08/20/2007 (Court Reporter FTR − Valeri Barnes.) (dln, ) (Entered: 08/09/2007)
153 REPLY to Response to Motion re 141 MOTION to Strike 131 Reply to Response to Motion, In Support of Motion for Class Certification and Conditional Approval of ADEA Collective Action, or in the Alternative, Motion for Leave to File Surreply in Response to Plaintiffs' Reply filed by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Modified on 8/13/2007 to remove duplicate text) (dln, ). (Entered: 08/10/2007)
154 Docket Annotation re: 153 REPLY to Response to Motion re 141 MOTION to Strike 131 Reply to Response to Motion, In Support of Motion for Class Certification and Conditional Approval of ADEA Collective Action, or in the Alternative, Motion for Leave to File Surreply in Response to Plaintiffs' Reply filed by Defendants. [Entry modified to remove duplicate text]. Text only entry − no document attached. (dln, ) (Entered: 08/13/2007)
155 Unopposed MOTION For Extension of Time to Object to Subpoena and Related Motion to Quash by Interested Party Mercer Human Resource Consulting, Inc.. (Attachments: # 1 Exhibit # 2 Proposed Order (PDF Only))(Burke, Thomas)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 17 of 42

08/14/2007
08/15/2007 08/20/2007 08/23/2007 08/30/2007 08/31/2007
08/31/2007
09/03/2007 09/07/2007
09/10/2007 09/10/2007 09/11/2007 09/11/2007 09/14/2007

(Entered: 08/14/2007)
156 MEMORANDUM regarding 155 Unopposed MOTION For Extension of Time to Object to Subpoena and Related Motion to Quash filed by Mercer Human Resource Consulting, Inc.. (Text Only Entry − No Document Attached)Motions referred to Magistrate Judge Michael E. Hegarty by Judge Walker D. Miller on 8/14/07. (wdmsec, ) (Entered: 08/14/2007)
157 ORDER denying Unopposed 155 Motion for Extension of Time to Object to Subpoena and Related Motion to Quash without prejudice. Signed by Magistrate Judge Michael E. Hegarty on 8/15/07.(gms, ) (Entered: 08/15/2007)
158 REPLY to Response to Motion re 146 MOTION to Compel Production filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit 7# 2 Exhibit 8# 3 Exhibit 9# 4 Exhibit 10)(Bruce, Stephen) (Entered: 08/20/2007)
159 MINUTE ORDER: re: 158 REPLY to Response to Motion re 146 MOTION to Compel Production filed by Plaintiff. Defendants to provide supplemental briefing, not to exceed five pages by 08/30/2007 by Magistrate Judge Michael E. Hegarty on 8/23/07. (dln, ) (Entered: 08/23/2007)
160 SURREPLY re 146 MOTION to Compel Production filed by Defendants El Paso Corporation, El Paso Pension Plan. (Rillo, Christopher) (Entered: 08/30/2007)
161 ORDER Plaintiffs' 146 Motion to Compel Production is GRANTED. Defendants must provide the information and/or documents by 9/30/07. The Unopposed Renewed 143 Motion to Amend Scheduling Order to Extend Time is GRANTED IN PART and DENIED IN PART, Discovery cutoff 1/31/08, Dispositive motion deadline 3/3/08. Final Pretrial Conference RESET to 4/16/08 at 9:30 AM, Proposed Pretrial Order due no later than 4/9/08. Signed by Magistrate Judge Michael E. Hegarty on 8/31/07.(mrs, ) (Entered: 08/31/2007)
162 Utility Setting/Resetting Deadlines/Hearings: Discovery due by 1/31/2008, Dispositive Motions due by 3/3/2008, Proposed Pretrial Order due by 4/9/2008, Final Pretrial Conference set for 4/16/2008 09:30 AM before Magistrate Judge Michael E. Hegarty pursuant to Order dated 8/31/07. Text only entry − no document attached. (mrs, ) (Entered: 08/31/2007)
163 NOTICE of Change of Address by Barry Douglas Roseman (Roseman, Barry) (Entered: 09/03/2007)
164 NOTICE re 128 MOTION for Judgment On the Pleadings Pursuant to Federal Rule of Civil Procedure 12(C) MOTION for Judgment On the Pleadings Pursuant to Federal Rule of Civil Procedure 12(C) of Supplemental Authority by Defendants El Paso Corporation, El Paso Pension Plan (Attachments: # 1 Exhibit Wheeler v. Boeing)(Rillo, Christopher) (Entered: 09/07/2007)
165 ORDER of Recusal. Clerk is directed to reassign this matter by random draw to another Magistrate Judge. Signed by Magistrate Judge Michael E. Hegarty on 9/10/2007. (llr, ) (Entered: 09/10/2007)
166 LETTER REASSIGNING CASE per Order of Recusal 9/10/2007. Case reassigned to Judge Craig B Shaffer for all further proceedings. Judge Michael E. Hegarty is no longer assigned to case. (llr, ) (Entered: 09/10/2007)
167 RESPONSE to 164 Notice (Other), Notice (Other) of Supplemental Authority re 128 Motion for Judgment on Pleadings by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce, Stephen) (Entered: 09/11/2007)
168 MINUTE ORDER: Settlement Conference set for 11/15/2007 03:30 PM in Courtroom A 402 before Magistrate Judge Craig B Shaffer., Final Pretrial Conference set for 4/16/2008 09:30 AM before Magistrate Judge Craig B Shaffer by Magistrate Judge Craig B Shaffer on 9/11/07. (dln, ) (Entered: 09/11/2007)
169 TRANSCRIPT of Motions Hearing held on 8−9−07 before Magistrate Judge Hegarty. Pages: 1−20. Per statute, copies of transcripts are available for inspection in the clerk's office. Parties interested in a copy may contact the court reporter or,

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 18 of 42

10/30/2007
10/31/2007 11/02/2007 11/07/2007 11/08/2007 11/09/2007 11/12/2007
11/15/2007 11/26/2007 11/26/2007 11/30/2007 12/13/2007 12/17/2007

in the case of a transcript prepared from a digital−audio taped record, the courtroom deputy for the judicial officer. (Avery Woods Reporting, ) (Entered: 09/14/2007)
170 MOTION for Sanctions for Non−Compliance with Magistrate Judge Hegarty's August 31, 2007 Order by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 10/30/2007)
171 MEMORANDUM regarding 170 MOTION for Sanctions for Non−Compliance with Magistrate Judge Hegarty's August 31, 2007 Order filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. (Text Only Entry − No Document Attached)Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 10/31/07. (wdmsec, ) (Entered: 10/31/2007)
172 MINUTE ORDER re: 170 MOTION for Sanctions for Non−Compliance with Magistrate Judge Hegarty's August 31, 2007 Order by Plaintiffs. Defendants' response due by 11/12/07 by Magistrate Judge Craig B Shaffer on 11/2/07. (dln, ) (Entered: 11/02/2007)
173 Unopposed MOTION for Leave to Allow Insurance Representatives to Attend Settlement Conference by Telephone by Defendants El Paso Corporation, El Paso Pension Plan. (Rillo, Christopher) (Entered: 11/07/2007)
174 MEMORANDUM regarding 173 Unopposed MOTION for Leave to Allow Insurance Representatives to Attend Settlement Conference by Telephone filed by El Paso Corporation, El Paso Pension Plan. (Text Only Entry − No Document Attached)Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 11/8/07. (wdmsec, ) (Entered: 11/08/2007)
175 Minute ORDER granting 173 Unopposed MOTION for Leave to Allow Insurance Representatives to Attend Settlement Conference by Telephone by Defendants by Magistrate Judge Craig B Shaffer on 11/9/07.(dln, ) (Entered: 11/09/2007)
176 BRIEF in Opposition re 170 MOTION for Sanctions for Non−Compliance with Magistrate Judge Hegarty's August 31, 2007 Order filed by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Declaration of De'Anne H. Hite, # 2 Declaration of Todd Flessner, # 3 Declaration of Christopher J. Rillo, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K, # 15 Exhibit L, # 16 Exhibit M, # 17 Exhibit N, # 18 Exhibit O)(Rillo, Christopher) (Entered: 11/12/2007)
177 Minute Entry for proceedings held before Magistrate Judge Craig B Shaffer: Settlement Conference held on 11/15/2007. (Court Reporter No Record Made.) (dln, ) (Entered: 11/16/2007)
178 MINUTE ORDER: Telephonic Status Conference set for 11/30/2007 10:00 AM before Magistrate Judge Craig B Shaffer by Magistrate Judge Craig B Shaffer on 11/26/07. (dln, ) (Entered: 11/26/2007)
179 NOTICE re 170 MOTION for Sanctions for Non−Compliance with Magistrate Judge Hegarty's August 31, 2007 Order by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy (Bruce, Stephen) (Entered: 11/26/2007)
180 Minute Entry for proceedings held before Magistrate Judge Craig B Shaffer: withdrawing 170 Motion for Sanctions; Telephonic Status Conference held on 11/30/2007. (Court Reporter FTR Valeri Barnes.) (erv, ) (Entered: 11/30/2007)
181 MINUTE ORDER that a Telephonic Status Conference is set for 12/17/2007 08:30 AM before Magistrate Judge Craig B Shaffer, by Magistrate Judge Craig B Shaffer on 12/13/07. (lam, ) (Entered: 12/13/2007)
182 Unopposed MOTION to Withdraw as Attorney by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Proposed Order (PDF Only)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 19 of 42

12/17/2007 12/17/2007 12/17/2007 12/17/2007 01/03/2008 01/04/2008 01/04/2008 01/04/2008 01/04/2008 01/04/2008 01/10/2008
01/11/2008
01/23/2008
01/28/2008 01/28/2008

Proposed Order)(Nadel, Darren) (Entered: 12/17/2007)
183 Minute Entry for proceedings held before Magistrate Judge Craig B Shaffer: Telephonic Status Conference held on 12/17/2007. Status Report due by 1/3/2008. (Court Reporter FTR − Valerie Barnes.) (sss, ) (Entered: 12/17/2007)
184 MEMORANDUM regarding 182 Unopposed MOTION to Withdraw as Attorney by Defendants. Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 12/17/07. (Text Only Entry − No Document Attached)(dln, ) (Entered: 12/17/2007)
185 MEMORANDUM regarding 182 Unopposed MOTION to Withdraw as Attorney filed by El Paso Corporation, El Paso Pension Plan. (Text Only Entry − No Document Attached)Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 12/17/07. (wdmsec, ) (Entered: 12/17/2007)
186 MINUTE ORDER granting Unopposed 182 Motion to Withdraw as Counsel of Record. Attorney Jill M. Brady terminated, by Magistrate Judge Craig B Shaffer on 12/17/07.(sss, ) (Entered: 12/18/2007)
187 Joint MOTION For Extension of Time to File Joint Report by Defendants El Paso Corporation, El Paso Pension Plan, Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Nadel, Darren) (Entered: 01/03/2008)
188 MEMORANDUM regarding 187 Joint MOTION For Extension of Time to File Joint Report. Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 1/4/08. (Text Only Entry − No Document Attached)(dln, ) (Entered: 01/04/2008)
189 NOTICE of Entry of Appearance by Joshua B. Kirkpatrick on behalf of El Paso Corporation, El Paso Pension Plan (Kirkpatrick, Joshua) (Entered: 01/04/2008)
190 NOTICE of Entry of Appearance by Melissa A. Monheim on behalf of El Paso Corporation, El Paso Pension Plan (Monheim, Melissa) (Entered: 01/04/2008)
191 MINUTE ORDER granting the Joint 187 Motion for Extension of Time to File Joint Report. The deadline is extended to 1/4/08, by Magistrate Judge Craig B Shaffer on 1/4/08.(mrs, ) (Entered: 01/04/2008)
192 STATUS REPORT by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Kirkpatrick, Joshua) (Entered: 01/04/2008)
193 MINUTE ORDER Setting Hearing: Upon review of the status reports submitted by counsel, it is ORDERED that a Telephonic Status Conference is set for 1/17/2008 at 3:30 p.m. before Magistrate Judge Craig B Shaffer. Counsel shall create a conference call, then contact the Court at (303) 844−2117 to participate in the hearing, by Magistrate Judge Craig B Shaffer on 1/10/08. (Text Only Entry − no document attached) (cbssec) (Entered: 01/10/2008)
194 MINUTE ORDER Reseting Hearings: Per the unopposed telephonic request made by counsel, this will confirm that the Telephonic Status Conference is reset to 1/23/2008 at 10:00 a.m. before Magistrate Judge Craig B. Shaffer. Counsel shall create a conference call, then contact the Court at (303) 844−2117 to participate in the hearing. By Magistrate Judge Shaffer on 1/11/08. (Text only entry − no document attached)(cbssec) (Entered: 01/11/2008)
195 Courtroom Minutes/Minute Order for proceedings held before Magistrate Judge Craig B Shaffer: Telephonic Status Conference held on 1/23/2008: Status/Scheduling Conference set for 1/31/2008 at 1:30 p.m. in Courtroom A 402 before Magistrate Judge Craig B Shaffer. (Court Reporter FTR − Ben Van Dyke) (cbscd) (Entered: 01/23/2008)
196 Proposed Scheduling Order (Joint Case Report) by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Roseman, Barry) (Entered: 01/28/2008)
197 Proposed Scheduling Order (Amended) by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Roseman, Barry) (Entered: 01/28/2008)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 20 of 42

01/29/2008 01/31/2008
01/31/2008 02/06/2008 02/06/2008 02/07/2008 02/12/2008 02/12/2008 02/27/2008
02/29/2008 03/04/2008
03/04/2008
03/06/2008 03/12/2008

198 Courtroom Minutes/Minute Order for proceedings held before Magistrate Judge Craig B Shaffer. Telephonic Discovery Conference held on 1/29/2008: The defendants may file a motion to compel regarding the deposition of Wayne Tomlinson. (Court Reporter FTR − Ben Van Dyke) (cbscd) (Entered: 01/29/2008)
199 Courtroom Minutes/Minute Order for proceedings held before Magistrate Judge Craig B Shaffer. Status/Scheduling Conference held on 1/31/2008: Discovery due by 6/16/2008; Dispositive Motions due by 7/14/2008; Final Pretrial Conference reset for 10/30/2008 at 9:15 a.m. in Courtroom A 402 before Magistrate Judge Craig B Shaffer. (Court Reporter FTR − Ben Van Dyke) (cbscd) (Entered: 01/31/2008)
200 AMENDED SCHEDULING ORDER: Discovery due by 6/16/2008. Dispositive Motions due by 7/14/2008. Final Pretrial Conference set for 10/30/2008 09:15 AM before Magistrate Judge Craig B Shaffer. Signed by Magistrate Judge Craig B Shaffer on 01/31/2008. (sah2, ) (Entered: 02/01/2008)
201 MOTION for Leave to Withdraw as Counsel by Interested Party Mercer Human Resource Consulting, Inc.. (Attachments: # 1 Proposed Order (PDF Only))(Burke, Thomas) (Entered: 02/06/2008)
202 MEMORANDUM regarding 201 MOTION for Leave to Withdraw as Counsel filed by Mercer Human Resource Consulting, Inc.. Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 2/6/08. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 02/06/2008)
203 Minute ORDER granting 201 Motion for Leave to Withdraw Thomas J. Burke as counsel for Mercer Human Resources Consulting, Inc., by Magistrate Judge Craig B Shaffer on 02/07/2008.(sah2, ) (Entered: 02/07/2008)
204 NOTICE re 107 MOTION to Certify Class and Approve ADEA Action of Supplemental Authority by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy (Bruce, Stephen) (Entered: 02/12/2008)
205 NOTICE re 134 Brief in Opposition to Motion, of Supplemental Authority by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy (Bruce, Stephen) (Entered: 02/12/2008)
206 NOTICE re 128 MOTION for Judgment On the Pleadings Pursuant to Federal Rule of Civil Procedure 12(C) by Defendants El Paso Corporation, El Paso Pension Plan (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Rillo, Christopher) Modified on 2/29/2008 to remove system−generated duplicate text (sss, ). (Entered: 02/27/2008)
207 Docket Annotation re: 206 Notice (Other). Docket entry modified to remove system−generated duplicate text. Text only entry − no document attached (sss, ) (Entered: 02/29/2008)
208 MOTION to Compel Responses to Deposition Questions and For Sanctions by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Nadel, Darren) Modified on 5/2/2008 Modified as WITHDRAWN pursuant to Minute Order dated 4/28/2008 (sah, ). (Entered: 03/04/2008)
209 MEMORANDUM regarding 208 MOTION to Compel Responses to Deposition Questions and For Sanctions filed by El Paso Corporation, El Paso Pension Plan. Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 3/4/08. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 03/04/2008)
210 MINUTE ORDER, A Motion Hearing set for 4/16/2008 01:30 PM in Courtroom A 402 in re: 208 to Defendants Motion to Compel Responses to Deposition Questions and For Sanctions by Magistrate Judge Craig B Shaffer on 03/06/2008. (sah, ) (Entered: 03/06/2008)
211 Courtroom Minutes/Minute Order for proceedings held before Magistrate Judge Craig B Shaffer. Telephonic Discovery Conference held on 3/12/2008: Plaintiffs' counsel shall either amend their general objection of produce a privilege log by

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 21 of 42

03/14/2008 03/19/2008
03/24/2008
03/25/2008 03/27/2008 03/28/2008 04/02/2008 04/11/2008 04/14/2008

3/17/2008. Signed verifications of interrogatory responses shall be provided by 3/17/2008. (Court Reporter FTR − Ben Van Dyke) (cbscd) (Entered: 03/12/2008)
212 RESPONSE to 205 Notice (Other), 204 Notice (Other) (Defendants' Response to Plaintiffs' Statement of Supplemental Authority Related to Motion for Class Certification and Approval of ADEA Collective Action by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Nadel, Darren) (Entered: 03/14/2008)
213 ORDER granting in part and denying in part 128 Motion for Judgment on the Pleadings, Plaintiffs' Claims II and IV are dismissed for failure to state a claim, Plaintiffs' Claim I and V remain pending; granting in part and denying in part 107 Plaintiffs Motion to Certify Class and Conditional Approval of ADEA Collective Action, Plaintiffs are entitled to conditional approval of their ADEA collective action, Defendants shall file a limited motion for summary judgment, Plaintiffs may file a response brief on or before 4/28/2008, No reply brief shall be filed. Plaintiffs' motion for class certification (Claim V) is DENIED without PREJUDICE; Plaintiffs shall file a notice amending their class definition on or before 3/31/2008; denying as moot 130 Defendants' motion to File the Declaration of Kevin Minor; granting in part and denying in part 141 Defendants Motion to Strike New Arguments Raised in Plaintiffs Reply. The motion is denied to the extent it seeks to preclude Plaintiff's proposed amended class definition. The motion is granted to the extent it seeks to preclude recovery by Plaintiffs. Signed by Judge Walker D. Miller on 03/19/2008.(sah2, ) (Entered: 03/19/2008)
214 Renewed MOTION for Sanctions for Non−Compliance with August 31, 2007 Order by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Proposed Order (PDF Only))(Bruce, Stephen) Modified on 5/2/2008 to WITHDRAW pursuant to Minute Order dated 4/28/2008(sah, ). (Entered: 03/24/2008)
215 MEMORANDUM regarding 214 Renewed MOTION for Sanctions for Non−Compliance with August 31, 2007 Order filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 3/25/08. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 03/25/2008)
216 BRIEF in Opposition re 208 MOTION to Compel Responses to Deposition Questions and For Sanctions filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Bruce, Stephen) (Entered: 03/27/2008)
217 NOTICE of Amendment of Collective Action Definition in Compliance with Order (Dkt. #213) by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy (Bruce, Stephen) (Entered: 03/28/2008)
218 MOTION for Reconsideration re 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,, by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 04/02/2008)
219 REPLY to Response to Motion re 208 MOTION to Compel Responses to Deposition Questions and For Sanctions (In Support of) filed by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Entered: 04/11/2008)
220 MOTION for Partial Summary Judgment (On ADEA Claim for Failure to File a Timely Charge of Discrimination) by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Entered: 04/14/2008)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 22 of 42

04/14/2008 04/14/2008
04/16/2008 04/17/2008 04/17/2008 04/22/2008 04/22/2008 04/28/2008 04/28/2008 05/02/2008

221 BRIEF in Support re 220 MOTION for Partial Summary Judgment (On ADEA Claim for Failure to File a Timely Charge of Discrimination) filed by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Nadel, Darren) (Entered: 04/14/2008)
222 RESPONSE to Motion re 214 Renewed MOTION for Sanctions for Non−Compliance with August 31, 2007 Order filed by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit Declaration of Todd Flessner, # 2 Exhibit Declaration of Darren Nadel, # 3 Exhibit Declaration of Christopher Rillo, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K, # 15 Exhibit L, # 16 Exhibit M, # 17 Exhibit N, # 18 Exhibit O, # 19 Exhibit P, # 20 Exhibit Q, # 21 Exhibit R, # 22 Exhibit S, # 23 Exhibit T)(Rillo, Christopher) (Entered: 04/14/2008)
223 Courtroom Minutes/Minute Order for proceedings held before Magistrate Judge Craig B Shaffer. Motion Hearing held on 4/16/2008: Counsel discuss their discovery agreements and remaining discovery issues with the court. (Court Reporter FTR − Ben Van Dyke) (cbscd) (Entered: 04/17/2008)
224 Courtroom Minutes/Minute Order for proceedings held before Magistrate Judge Craig B Shaffer. Discovery Conference held on 4/17/2008: The parties shall submit a joint proposal to the court outlining the discovery that they believe should go forward during the pendency of the outstanding dispositive motions, and the discovery they want to do following rulings on the pending dispositive motions by 4/22/2007. (Court Reporter FTR − Ben Van Dyke) (cbscd) (Entered: 04/17/2008)
225 AMENDED Minute Entry for proceedings held before Magistrate Judge Craig B Shaffer: Amended re 224 Discovery Hearing. The parties shall submit a joint proposal to the court outlining the discovery that they believe should go forward during the pendency of the outstanding dispositive motions, and the discovery they want to do following rulings on the pending dispositive motions by April 22, 2008. (Court Reporter FTR−Ben Van Dyke.) (sah, ) (Entered: 04/21/2008)
226 BRIEF in Opposition re 218 MOTION for Reconsideration re 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,, MOTION for Reconsideration re 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,, filed by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Nadel, Darren) (Entered: 04/22/2008)
227 Proposed Scheduling Order (Joint Proposal on Bifurcating Discovery) by Defendants El Paso Corporation, El Paso Pension Plan, Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce, Stephen) (Entered: 04/22/2008)
228 MINUTE ORDER IT IS ORDERED that the court will adopt the proposed deadlines to oversee discovery during the pendency of and following the rulings on the pending dispositive motions. Withdrawing Without Prejudice 208 Pla's Renewed Motion to Compel; Withdrawing Without Prejudice 214 Motion for Sanctions, by Magistrate Judge Craig B Shaffer on 4/28/08.(erv, ) (Entered: 04/28/2008)
229 BRIEF in Opposition re 220 MOTION for Partial Summary Judgment (On ADEA Claim for Failure to File a Timely Charge of Discrimination) filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Bruce, Stephen) (Entered: 04/28/2008)
230 Docket Annotation re: 214 Renewed MOTION for Sanctions for Non−Compliance with August 31, 2007 Order, 208 MOTION to Compel Responses to Deposition Questions and For Sanctions. Entries modified as WITHDRAWN pursuant to Minute Order dated 4/28/2008 Text only entry − no document attached (sah, ) (Entered: 05/02/2008)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 23 of 42

05/12/2008
05/14/2008 05/14/2008 05/16/2008 05/27/2008 05/27/2008 06/06/2008 06/06/2008 06/10/2008
06/13/2008

231 REPLY to Response to Motion re 218 MOTION for Reconsideration re 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,, MOTION for Reconsideration re 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,, filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit 4, # 2 Exhibit 5, # 3 Exhibit 6, # 4 Exhibit 7, # 5 Exhibit 8, # 6 Exhibit 9)(Bruce, Stephen) (Entered: 05/12/2008)
232 MOTION for Partial Summary Judgment On Claim V by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Entered: 05/14/2008)
233 BRIEF in Support re 232 MOTION for Partial Summary Judgment On Claim V filed by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Nadel, Darren) (Entered: 05/14/2008)
234 TRANSCRIPT of Discovery Conference held on 4−17−08 before Magistrate Judge Shaffer. Pages: 1−54. Per statute, copies of transcripts are available for inspection in the clerk's office. Parties interested in a copy may contact the court reporter or, in the case of a transcript prepared from a digital−audio taped record, the courtroom deputy for the judicial officer. (Avery Woods Reporting, ) (Entered: 05/16/2008)
235 RESPONSE to Motion re 218 MOTION for Reconsideration re 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,, MOTION for Reconsideration re 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,, Defendants' Evidentiary Objections in Opposition to Plaintiffs' Reply Memorandum filed by Defendants El Paso Corporation, El Paso Pension Plan. (Rillo, Christopher) (Entered: 05/27/2008)
236 BRIEF in Opposition re 218 MOTION for Reconsideration re 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,, MOTION for Reconsideration re 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,, Defendants' Brief in Support of Evidentiary Objections filed by Defendants El Paso Corporation, El Paso Pension Plan. (Rillo, Christopher) (Entered: 05/27/2008)
237 BRIEF in Opposition re 232 MOTION for Partial Summary Judgment On Claim V filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12 (Affidavit))(Bruce, Stephen) (Entered: 06/06/2008)
238 NOTICE re 220 MOTION for Partial Summary Judgment (On ADEA Claim for Failure to File a Timely Charge of Discrimination) (Notice of Supplemental Authority) by Defendants El Paso Corporation, El Paso Pension Plan (Attachments: # 1 Exhibit A, Part 1, # 2 Exhibit A, Part 2, # 3 Exhibit A, Part 3)(Nadel, Darren) (Entered: 06/06/2008)
239 MOTION to Supplement 226 Brief in Opposition to Motion,, 218 MOTION for Reconsideration re 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,, MOTION for Reconsideration re 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,, Notice of Supplemental Authority) by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit A, Part 1, # 2 Exhibit A, Part 2, # 3 Exhibit A, Part 3, # 4 Exhibit A, Part 4, # 5 Exhibit A, Part 5, # 6 Exhibit A, Part 6, # 7 Exhibit A, Part 7)(Nadel, Darren) (Entered: 06/10/2008)
240 Unopposed MOTION For Extension of Time to Conduct Discovery by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 06/13/2008)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 24 of 42

06/16/2008 06/17/2008 06/18/2008 06/18/2008
06/18/2008 06/19/2008
06/23/2008 06/23/2008 06/23/2008

241 MEMORANDUM regarding 240 Unopposed MOTION For Extension of Time to Conduct Discovery filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy.Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 6/16/08. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 06/16/2008)
242 MINUTE ORDER granting 240 Plaintiffs Unopposed Motion to Amend Minute Order on Discovery. The deadline for Plaintiffs to file a motion or motions to enforce the subpoenas duces tecum served on Mercer and Hewitt is extended to 7/14/2008. The deadline for expert depositions is extended to 7/30/2008 by Magistrate Judge Craig B Shaffer on 06/17/2008.(sah, ) (Entered: 06/17/2008)
243 Unopposed MOTION for Extension of Time to File Response/Reply as to 232 MOTION for Partial Summary Judgment On Claim V by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Nadel, Darren) (Entered: 06/18/2008)
244 MEMORANDUM regarding 243 Unopposed MOTION for Extension of Time to File Response/Reply as to 232 MOTION for Partial Summary Judgment On Claim VUnopposed MOTION for Extension of Time to File Response/Reply as to 232 MOTION for Partial Summary Judgment On Claim V filed by El Paso Corporation, El Paso Pension Plan. Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 6/18/08. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 06/18/2008)
245 MINUTE ORDER granting 243 Defendants Unopposed Motion for Extension of Time to File a Reply in Support of Defendants Motion for Partial Summary Judgment on Claim V. The deadline is extended to 6/30/2008 by Magistrate Judge Craig B Shaffer on 06/18/2008.(sah, ) (Entered: 06/18/2008)
246 REPLY to Response to Motion re 218 MOTION for Reconsideration re 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,, MOTION for Reconsideration re 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,, Plaintiffs' Opposition to Defendants' "Evidentiary Objections" in Opposition to Plaintiffs' Reply in Support of Motion for Reconsideration filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce, Stephen) (Entered: 06/19/2008)
247 MOTION for In Camera Inspection Defendants' Motion for In Camera Review of Documents Inadvertently Produced to Plaintiffs on February 14, 2008 by Defendants El Paso Corporation, El Paso Pension Plan. (Rillo, Christopher) (Entered: 06/23/2008)
248 MEMORANDUM regarding 247 MOTION for In Camera Inspection Defendants' Motion for In Camera Review of Documents Inadvertently Produced to Plaintiffs on February 14, 2008 filed by El Paso Corporation, El Paso Pension Plan.Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 6/23/08. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 06/23/2008)
249 TRANSCRIPT of Motoins Hearing held on 4−16−08 before Magistrate Judge Shaffer. Pages: 1−113.

NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.

Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 9/22/2008. (Avery Woods Reporting, ) (Entered: 06/23/2008)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 25 of 42

06/23/2008 06/23/2008 06/23/2008 06/24/2008 06/24/2008 06/25/2008 06/30/2008 07/07/2008
07/10/2008 07/11/2008

250 MOTION for In Camera Inspection by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 06/23/2008)
251 BRIEF in Support re 250 MOTION for In Camera Inspection filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Bruce, Stephen) (Entered: 06/23/2008)
252 MEMORANDUM regarding 250 MOTION for In Camera Inspection filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 6/23/08. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 06/23/2008)
253 MINUTE ORDER, A Telephonic Status Conference to discuss Defendants Motionfor In Camera Review of Documents Inadvertently Produced to Plaintiffs on February 14, 2008 247 and Plaintiffs Motion for In Camera Review of Inadvertently Produced Spreadsheets Identified in 5/2/2008 Privilege Log 250 is set for 7/10/2008 03:30 PM by Magistrate Judge Craig B Shaffer on 06/24/2008. (sah, ) (Entered: 06/24/2008)
254 NOTICE re 218 MOTION for Reconsideration re 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,, MOTION for Reconsideration re 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,, Statement of Supplemental Authority by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Bruce, Stephen) (Entered: 06/24/2008)
255 RESPONSE to 254 Notice (Other) (Supplemental Authority) by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) Modified on 6/26/2008 to remove system generated duplicate text(sah, ). (Entered: 06/25/2008)
256 BRIEF in Support re 232 MOTION for Partial Summary Judgment On Claim V filed by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit J, Part 1, # 2 Exhibit J, Part 2, # 3 Exhibit J, Part 3, # 4 Exhibit J, Part 4, # 5 Exhibit J, Part 5, # 6 Exhibit J, Part 6, # 7 Deposition Excerpts J, Part 7, # 8 Exhibit J, Part 8, # 9 Exhibit K, Part 1, # 10 Exhibit K, Part 2.pdf, # 11 Exhibit K, Part 3.pdf, # 12 Exhibit L, Part 1, # 13 Exhibit L, Part 2.pdf, # 14 Exhibit M, Part 1.pdf, # 15 Exhibit M, Part 2.pdf)(Nadel, Darren) (Entered: 06/30/2008)
257 BRIEF re 235 Response to Motion,, 218 MOTION for Reconsideration re 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,, MOTION for Reconsideration re 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,,, 213 Order on Motion to Certify Class, Order on Motion for Judgment, Order on Motion for Leave, Order on Motion to Strike,,,,,,,,,,,,,,,, Defendants' Reply in Support of Evidentiary Objections in Connection with Plaintiff's Motion for Reconsideration of March 19, 2008 Decision by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Entered: 07/07/2008)
258 COURTROOM MINUTES/MINUTE ORDER for proceedings held before Magistrate Judge Craig B Shaffer. Telephonic Status Conference held on 7/10/2008: Granting 247 Motion for In Camera Inspection and Granting 250 Motion for In Camera Inspection. Defendants' counsel shall file a responsive brief to 251 and provide the referenced documents for in camera review by 7/15/2007. No reply shall be allowed absent a showing of good cause. (FTR − Ben Van Dyke) (cbscd) (Entered: 07/11/2008)
259 AMENDED Minute Entry for proceedings held before Magistrate Judge Craig B Shaffer: Defendants Motion for In Camera Review of Documents InadvertentlyProduced to Plaintiffs on 2/14/2080( 247 and Plaintiffs Motionfor In Camera Review of Inadvertently Produced Spreadsheets Identifiedin 5/2/2008 Privilege Log 250 are granted for the reasons stated onthe record. Defendants counsel shall file a responsive brief to 251 andprovide the referenced documents for in camera review by 7/15/2008.The documents shall be provided in both hard

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 26 of 42

07/11/2008 07/14/2008 07/14/2008 07/14/2008 07/14/2008 07/15/2008 07/15/2008 07/22/2008 07/22/2008 07/30/2008 07/30/2008 07/30/2008
08/01/2008

copy and disc formats, asdiscussed on the record. No reply shall be allowed absent a showing of goodcause by plaintiffs counsel. (Court Reporter FTR−Ben Van Dyke.) (sah, ) (Entered: 07/11/2008)
260 Unopposed MOTION to Withdraw as Attorney (Raymond W. Martin) by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Proposed Order (PDF Only) Order)(Martin, Raymond) (Entered: 07/11/2008)
261 MEMORANDUM regarding 260 Unopposed MOTION to Withdraw as Attorney (Raymond W. Martin) filed by El Paso Corporation, El Paso Pension Plan. Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 7/14/08. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 07/14/2008)
262 MINUTE ORDER granting 260 Motion to Withdraw as Attorney. Attorney Raymond W. Martin terminated by Magistrate Judge Craig B Shaffer on 07/14/2008.(sah, ) (Entered: 07/14/2008)
263 MOTION to Enforce Subpoena Duces Tecum to Mercer by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 07/14/2008)
264 BRIEF in Support re 263 MOTION to Enforce Subpoena Duces Tecum to Mercer filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Bruce, Stephen) (Entered: 07/14/2008)
265 MEMORANDUM regarding 263 MOTION to Enforce Subpoena Duces Tecum to Mercer filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 7/14/08. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 07/15/2008)
266 BRIEF in Support re 247 MOTION for In Camera Inspection Defendants' Motion for In Camera Review of Documents Inadvertently Produced to Plaintiffs on February 14, 2008 filed by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Rillo, Christopher) (Entered: 07/15/2008)
267 MINUTE ORDER setting hearings: Magistrate Conference set for 7/22/2008 at 10:30 a.m. in Courtroom A 402 before Magistrate Judge Shaffer. Entered by Magistrate Judge Craig B Shaffer on 7/22/08. (cbssec) (Entered: 07/22/2008)
268 MINUTE ORDER, A Magistrate Conference is set for 7/30/2008 10:30 AM in Courtroom A 402 by Magistrate Judge Craig B Shaffer on 07/22/2008. (sah, ) (Entered: 07/23/2008)
269 MOTION for Extension of Time to File Response/Reply as to 263 MOTION to Enforce Subpoena Duces Tecum to Mercer by Interested Party Mercer Human Resource Consulting, Inc.. (Attachments: # 1 Proposed Order (PDF Only))(Toll, Christopher) (Entered: 07/30/2008)
270 MEMORANDUM regarding 269 MOTION for Extension of Time to File Response/Reply as to 263 MOTION to Enforce Subpoena Duces Tecum to Mercer filed by Mercer Human Resource Consulting, Inc.. Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 7/30/08. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 07/30/2008)
271 COURTROOM MINUTES/MINUTE ORDER for proceedings held before Magistrate Judge Craig B Shaffer. Discovery Conference held on 7/30/2008: The documents inadvertently produced to plaintiffs' counsel on February 14, 2008 by El Paso Corporation are not required to be returned to El Paso for the reasons articulated on the record. The disputed documents may be retained by plaintiffs. (FTR − Ben Van Dyke) (cbscd) (Entered: 07/30/2008)
272 RESPONSE to Motion re 269 MOTION for Extension of Time to File Response/Reply as to 263 MOTION to Enforce Subpoena Duces Tecum to Mercer filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce,

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 27 of 42

08/04/2008 08/15/2008
08/15/2008 08/18/2008 08/18/2008 08/19/2008 09/02/2008 09/04/2008 09/05/2008 09/15/2008

Stephen) (Entered: 08/01/2008)
273 MINUTE ORDER granting 269 Mercers Motion for Extension of Time to Respond to Plaintiffs Motion to Enforce Subpoena duces Tecum to Mercer. The deadline for Mercer to respond is extended to 8/18/2008 by Magistrate Judge Craig B Shaffer on 08/04/2008.(sah, ) (Entered: 08/04/2008)
274 TRANSCRIPT of Discovery Conference held on 7−30−08 before Magistrate Judge Shaffer. Pages: 1−64.
NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.
Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 11/13/2008. (Avery Woods Reporting, ) (Entered: 08/15/2008)
275 Second MOTION for Extension of Time to File Response/Reply to 263 Plaintiffs' Motion to Enforce Subpoena Duces Tecum to Mercer by Interested Party Mercer Human Resource Consulting, Inc.. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Toll, Christopher) Modified on 8/18/2008 to create linkage to the Motion to Enforce Subpoena Duces Tecum to Mercer (sah, ). (Entered: 08/15/2008)
276 MEMORANDUM regarding 275 Second MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion to Enforce Subpoena Duces Tecum to Mercer filed by Mercer Human Resource Consulting, Inc..Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 8/18/08. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 08/18/2008)
277 Docket Annotation re: 275 Second MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion to Enforce Subpoena Duces Tecum to Mercer. Entry modified on 8/18/2008 to create linkage to the Motion to Enforce Subpoena Duces Tecum to Mercer. Text only entry − no document attached (sah, ) (Entered: 08/18/2008)
278 MINUTE ORDER granting Mercer Human Resource Consulting's 275 Motion for Extension of Time to File Response to Plaintiff's 263 Motion to Enforce Subpoena Duces Tecum to Mercer. The deadline to respond is extended to 9/1/08. Entered by Magistrate Judge Craig B Shaffer on 8/19/08. (Text only entry − no document attached) (cbssec) (Entered: 08/19/2008)
279 RESPONSE to Motion re 263 MOTION to Enforce Subpoena Duces Tecum to Mercer filed by Interested Party Mercer Human Resource Consulting, Inc.. (Attachments: # 1 Exhibit A to Mercer's Response to Plaintiffs' Motion to Enforce Subpoena Duces Tecum to Mercer)(Toll, Christopher) (Entered: 09/02/2008)
280 NOTICE re 226 Brief in Opposition to Motion,, Defendants' Second Notice of Supplemental Authority in Support of Response to Motion for Reconsideration by Defendants El Paso Corporation, El Paso Pension Plan (Attachments: # 1 Exhibit)(Rillo, Christopher) (Entered: 09/04/2008)
281 RESPONSE to 280 Notice (Other), Notice (Other) of Supplemental Authority in Support of Response to Motion for Reconsideration by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce, Stephen) (Entered: 09/05/2008)
282 MINUTE ORDER. A Motion Hearing on Plaintiffs Motion to Enforce Subpoenaduces Tecum to Mercer 263 is set for 10/06/2008 at 8:30 a.m. in Courtroom A− 402, Fourth Floor, of the Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado by Magistrate Judge Craig B Shaffer on 09/15/2008. (sah,

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 28 of 42

09/16/2008 09/16/2008 09/16/2008 09/25/2008 09/26/2008 09/26/2008
09/26/2008
09/29/2008
09/29/2008 09/30/2008
10/01/2008 10/07/2008

) (Entered: 09/15/2008)
283 Unopposed MOTION for Extension of Time to File Response/Reply as to 279 Response to Motion, by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 09/16/2008)
284 MEMORANDUM regarding 283 Unopposed MOTION for Extension of Time to File Response/Reply as to 279 Response to Motion, filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. Motions referred to Magistrate Judge Craig B Shaffer. Signed by Judge Walker D. Miller on 9/16/08. (wdmcd) (Text Only Entry − No Document Attached) (Entered: 09/16/2008)
285 MINUTE ORDER granting 283 Plaintiffs Unopposed Motion for Extension of Time to Reply to Mercers Response to Motion to Enforce Subpoena Duces Tecum. The reply to Mercers Response to Motion to Enforce Subpoena Duces Tecum is due by09/29/2008 by Magistrate Judge Craig B Shaffer on 09/16/2008.(sah, ) (Entered: 09/16/2008)
286 MOTION For Extension of Time For Scheduled Hearing by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Entered: 09/25/2008)
287 MEMORANDUM regarding 286 MOTION For Extension of Time For Scheduled Hearing filed by El Paso Corporation, El Paso Pension Plan. Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 9/26/08. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 09/26/2008)
288 MINUTE ORDER setting hearing on Defendants' 286 MOTION For Extension of Time For Scheduled Hearing: Telephonic Motion Hearing will be held on 9/30/2008 10:00 a.m. Counsel shall coordinate to create a conference call, then contact the Court at (303) 844−2117 to participate in the hearing. Entered by Magistrate Judge Craig B Shaffer on 9/26/08. (Text only entry − no document attached)(cbssec) (Entered: 09/26/2008)
289 MINUTE ORDER rsetting hearing on Defendants' 286 MOTION For Extension of Time For Scheduled Hearing: Telephonic Motion Hearing RESET to 9/29/2008 at 1:00 p.m. Counsel shall coordinate to create a conference call, then contact the Court at (303) 844−2117 to participate in the hearing. Entered by Magistrate Judge Craig B Shaffer on 9/26/08. (Text only entry − no document attached)(cbssec) (Entered: 09/26/2008)
290 REPLY to Response to Motion re 263 MOTION to Enforce Subpoena Duces Tecum to Mercer filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit 8, # 2 Exhibit 9, # 3 Exhibit 10, # 4 Exhibit 11, # 5 Exhibit 12, # 6 Exhibit 13, # 7 Exhibit 14, # 8 Exhibit 15, # 9 Exhibit 16, # 10 Exhibit 17, # 11 Exhibit 18, # 12 Exhibit 19, # 13 Exhibit 20, # 14 Exhibit 21, # 15 Exhibit 22, # 16 Exhibit 23)(Bruce, Stephen) (Entered: 09/29/2008)
292 AMENDED COURTROOM MINUTES/MINUTE ORDER 291 Corrected date of hearing to September 29, 2008 (erv, ) Modified on 10/1/2008 to correct the file date (gms, ). (Entered: 09/30/2008)
291 COURTROOM MINUTES − Minute Entry for proceedings held before Magistrate Judge Craig B Shaffer: Motion Hearing held on 9/30/2008. Granting 286 Defendants' Motion for Extension of Time. Reset Plaintiffs' Motion to Enforce Subpoena Duces Techum to Mercer 236 to 10/15/2008 at 01:30 PM before Magistrate Judge Craig B. Shaffer. (Court Reporter FTR) (psfcd) (Entered: 09/30/2008)
293 Docket Annotation re: 292 Amended Document. This docket entry was modified to correct the file date to be 9/29/08. Text only entry − no document attached (gms, ) (Entered: 10/01/2008)
294 MOTION to Compel Adequate Privilege Log for Documents Withheld by Mercer by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 10/07/2008)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 29 of 42

10/07/2008 10/08/2008 10/15/2008
10/22/2008 10/22/2008 10/23/2008 11/05/2008

295 BRIEF in Support re 294 MOTION to Compel Adequate Privilege Log for Documents Withheld by Mercer filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Bruce, Stephen) (Entered: 10/07/2008)
296 MEMORANDUM regarding 294 MOTION to Compel Adequate Privilege Log for Documents Withheld by Mercer filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy.Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 10/8/08. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 10/08/2008)
297 COURTROOM MINUTES/MINUTE ORDER for proceedings held before Magistrate Judge Craig B Shaffer. Motion Hearing held on 10/15/2008: Denying 263 Motion to Enforce Subpoena Duces Tecum to Mercer. Counsel shall follow the guidelines set forth by the court regarding discovery as it goes forward. Defendants' counsel shall provide plaintiffs' counsel with a supplemental privilege log by 10/22/2008. Plaintiffs' counsel shall review the supplementation and respond to defendants' counsel by 11/5/2008 whether an issue still exists. If an issue still exists, plaintiffs' counsel shall file a supplemental brief by 11/12/2008, and defendants' response is due by 11/21/2008. No reply shall be allowed. The Final Pretrial Conference set for 10/30/2008 is vacated. (FTR − Ben Van Dyke) (cbscd) (Entered: 10/16/2008)
298 Unopposed MOTION For Extension of Time To Submit a Supplemental Privilege Log to Plaintiffs by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Randall, Melissa) (Entered: 10/22/2008)
299 MEMORANDUM regarding 298 Unopposed MOTION For Extension of Time To Submit a Supplemental Privilege Log to Plaintiffs filed by El Paso Corporation, El Paso Pension Plan. Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 10/22/08. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 10/22/2008)
300 ORDER granting Defendants' 298 Unopposed Motion For Extension of Time to Submit a Supplemental Privilege Log to Plaintiffs up to and including 10/27/2008. Signed by Magistrate Judge Craig B Shaffer on 10/23/2008.(sss, ) (Entered: 10/23/2008)
301 TRANSCRIPT of Motions Hearing held on 10−15−08 before Magistrate Judge Shaffer. Pages: 1−109.

NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.

11/14/2008 11/14/2008

Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 2/3/2009. (Avery Woods Reporting, ) (Entered: 11/05/2008)
302 Unopposed MOTION For Extension of Time to File Supplemental Brief on Privilege Log for Documents Withheld by Mercer by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 11/14/2008)
303 MEMORANDUM regarding 302 Unopposed MOTION For Extension of Time to File Supplemental Brief on Privilege Log for Documents Withheld by Mercer filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 11/14/08. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 11/14/2008)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 30 of 42

11/17/2008 11/24/2008 11/26/2008 11/28/2008 12/01/2008
12/02/2008 12/10/2008 01/21/2009 01/23/2009 02/06/2009 02/06/2009 02/06/2009

304 MINUTE ORDER granting Plaintiffs' Unopposed 302 Motion for Extension of Time to File Supplemental Brief on Privilege Log for Documents Withheld by Mercer. The deadline for Plaintiffs is extended to 11/24/08. Defendants have until 12/3/08 to file a response brief. Entered by Magistrate Judge Craig B Shaffer on 11/17/08. (Text only entry − no document attached) (cbssec) (Entered: 11/17/2008)
305 BRIEF in Support re 294 MOTION to Compel Adequate Privilege Log for Documents Withheld by Mercer (Supplemental Brief Authorized by 10/15/2008 Minute Order) filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit 10, # 2 Exhibit 11, # 3 Exhibit 12, # 4 Exhibit 13, # 5 Exhibit 14)(Bruce, Stephen) (Entered: 11/24/2008)
306 MOTION for Extension of Time to File Response/Reply as to Brief in Support of Motion to Compel Adequate Privilege Log for Documents Withheld by Mercer 294 by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Proposed Order (PDF Only))(Nadel, Darren) Modified on 11/28/2008 to correct linkage (gms, ). (Entered: 11/26/2008)
307 Docket Annotation re: 306 MOTION for Extension of Time to File Response/Reply as to 305 Brief in Support of Motion to Compel Adequate Privilege Log for Documents Withheld by Mercer. This docket entry was modified to correct the linkage to Doc #294. Text only entry − no document attached (gms, ) (Entered: 11/28/2008)
308 MEMORANDUM regarding 306 MOTION for Extension of Time to File Response/Reply as to 305 Brief in Support of Motion, to Compel Adequate Privilege Log for Documents Withheld by Mercer MOTION for Extension of Time to File Response/Reply as to 305 Brief in Support of Motion, to Compel Adequate Privilege Log for Documents Withheld by Mercer filed by El Paso Corporation, El Paso Pension Plan.Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 12/1/08. (Text Only Entry − No Document Attached)(wdmsec, ) (Entered: 12/01/2008)
309 MINUTE ORDER granting 306 Defendants' Motion for Extension of Time to File Response to Plaintiffis' Supplemental Brief in Support of Motion to Compel Adequate Privilege Log for Dcouments Withheld by Mercer to on or before 12/10/08, by Magistrate Judge Craig B Shaffer on 12/02/08.(wjc, ) (Entered: 12/02/2008)
310 BRIEF in Opposition re 294 MOTION to Compel Adequate Privilege Log for Documents Withheld by Mercer filed by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Nadel, Darren) (Entered: 12/10/2008)
311 ORDER denying 218 Plaintiff's Motion for Reconsideration of 3/19/08 Decision ; granting 220 Defendants' Motion for Partial Summary Judgment; granting 232 Defendants' Motion for Partial Summary Judgment. Summary judgment shall enter against Plaintiffs and in favor of Defendants on Claim I and Claim V. All other claims were previously dismissed. Defendants may have their costs. Signed by Judge Walker D. Miller on 1/21/09.(gms, ) (Entered: 01/22/2009)
312 JUDGMENT by Clerk. Summary judgment is entered against Plaintiffs and in favor of Defendants on Claim 1 and V. Judgment is entered in favor of Defendants and against Plaintiffs. Defendants are awarded costs upon the filing of a Bill of Costs with the Clerk of Court within ten days entry of judgment, signed on 1/23/09. (gmssl, ) (Entered: 01/23/2009)
313 MOTION to Alter Judgment re 312 Clerk's Judgment, by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 02/06/2009)
314 BRIEF in Support re 313 MOTION to Alter Judgment re 312 Clerk's Judgment, filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce, Stephen) (Entered: 02/06/2009)
315 MOTION for Attorney Fees Rule 45 Request fir Reimbursement of Attorney's Fees by Interested Party Mercer Human Resource Consulting, Inc.. (Attachments: # 1 Exhibit Exhibit A to Mercer's Rule 45 Request for Reimbursement of Attorney's

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 31 of 42

02/06/2009
02/06/2009 02/12/2009 02/12/2009 02/18/2009 02/26/2009
02/26/2009

Fees, # 2 Exhibit Exhibit B to Mercer's Rule 45 Request for Reimbursement of Attorney's Fees, # 3 Exhibit Exhibit C to Mercer's Rule 45 Request for Reimbursement of Attorney's Fees, # 4 Exhibit Exhibit D to Mercer's Rule 45 Request for Reimbursement of Attorney's Fees, # 5 Exhibit Exhibit E to Mercer's Rule 45 Request for Reimbursement of Attorney's Fees)(Toll, Christopher) (Entered: 02/06/2009)
316 Proposed Bill of Costs by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, Part 1, # 3 Exhibit B, Part 2, # 4 Exhibit B, Part 3, # 5 Exhibit B, Part 4, # 6 Exhibit B, Part 5, # 7 Exhibit B, Part 6, # 8 Exhibit B, Part 7, # 9 Exhibit B, Part 8, # 10 Exhibit B, Part 9, # 11 Exhibit B, Part 10, # 12 Exhibit B, Part 11, # 13 Exhibit B, Part 12, # 14 Exhibit C, Part 1, # 15 Exhibit C, Part 2, # 16 Exhibit C, Part 3, # 17 Exhibit C, Part 4, # 18 Exhibit C, Part 5, # 19 Exhibit C, Part 6, # 20 Exhibit C, Part 7)(Nadel, Darren) (Entered: 02/06/2009)
317 STATEMENT re 313 MOTION to Alter Judgment re 312 Clerk's Judgment,, 314 Brief in Support of Motion (Notice of Intent to Respond to Plaintiffs' Motion to Alter or Amend Judgment) by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Entered: 02/06/2009)
318 MOTION to Stay re 316 Proposed Bill of Costs,, by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 02/12/2009)
319 BRIEF in Support re 318 MOTION to Stay re 316 Proposed Bill of Costs,, filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce, Stephen) (Entered: 02/12/2009)
320 MINUTE ORDER granting 318 Plaintiffs' Motion to Stay Proceedings on Defendants' Bill of Costs pending determination of the Motion to Alter or Amend, by Judge Walker D. Miller on 2/18/09.(ebs, ) (Entered: 02/18/2009)
321 TRANSCRIPT of Telephonic Motion Hearing held on 09/29/08 before Magistrate Judge Shaffer. Pages: 1−10.
NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.
Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 5/27/2009. (Avery Woods Reporting, ) (Entered: 02/26/2009)
322 TRANSCRIPT of Telephonic Discovery Conference held on 01/31/08 before Magistrate Judge Shaffer. Pages: 1−31.
NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.
Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 5/27/2009. (Avery Woods Reporting, ) (Entered: 02/26/2009)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 32 of 42

02/26/2009 02/26/2009 02/26/2009
02/26/2009
02/26/2009 03/02/2009 03/02/2009 03/03/2009 03/18/2009 03/18/2009 03/23/2009 03/23/2009 03/23/2009

323 RESPONSE to Motion re 313 MOTION to Alter Judgment re 312 Clerk's Judgment, filed by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Nadel, Darren) (Entered: 02/26/2009)
324 STRICKEN − Amended MOTION for Summary Judgment on ADEA Claim by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) Modified on 8/28/2009 to indicate stricken pursuant to the order of 8/28/09 (gms, ). (Entered: 02/26/2009)
325 BRIEF in Support re 324 Amended MOTION for Summary Judgment on ADEA Claim filed by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit A − Part 1, # 2 Exhibit A − Part 2, # 3 Exhibit A − Part 3, # 4 Exhibit A − Part 4, # 5 Exhibit A − Part 5, # 6 Exhibit B, # 7 Exhibit C, # 8 Exhibit 1 to Exhibit C, # 9 Exhibit 2 to Exhibit C, # 10 Exhibit 3 to Exhibit C, # 11 Exhibit 4 to Exhibit C, # 12 Exhibit 5 to Exhibit C, # 13 Exhibit D, # 14 Exhibit 1 to Exhibit D, # 15 Exhibit 2 to Exhibit D, # 16 Exhibit 3 to Exhibit D, # 17 Exhibit 4 to Exhibit D, # 18 Exhibit E, # 19 Exhibit F, # 20 Exhibit G, # 21 Exhibit H, # 22 Exhibit I, # 23 Exhibit J, # 24 Exhibit K)(Nadel, Darren) (Entered: 02/26/2009)
326 RESPONSE to Motion re 313 MOTION to Alter Judgment re 312 Clerk's Judgment, Request for Approval of ADEA Collective Action Notice and Consent Form filed by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit A, # 2 Exhibit 1 to Exhibit A, # 3 Exhibit 2 to Exhibit A, # 4 Exhibit 3 to Exhibit A, # 5 Exhibit 4 to Exhibit A, # 6 Exhibit 5 to Exhibit A)(Nadel, Darren) (Entered: 02/26/2009)
327 MOTION for Leave to File Excess Pages to Defendants' Amended Motion for Partial Summary Judgment on Plaintiffs' ADEA Claim by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Proposed Order (PDF Only))(Nadel, Darren) (Entered: 02/26/2009)
328 MOTION to Strike 315 MOTION for Attorney Fees Rule 45 Request fir Reimbursement of Attorney's Fees by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 03/02/2009)
329 BRIEF in Support re 328 MOTION to Strike 315 MOTION for Attorney Fees Rule 45 Request fir Reimbursement of Attorney's Fees filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce, Stephen) (Entered: 03/02/2009)
330 REPLY to Response to Motion re 313 MOTION to Alter Judgment re 312 Clerk's Judgment, filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Appendix House Report 110−237)(Bruce, Stephen) (Entered: 03/03/2009)
331 MOTION to Strike 324 Amended MOTION for Summary Judgment on ADEA Claim by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 03/18/2009)
332 BRIEF in Support re 331 MOTION to Strike 324 Amended MOTION for Summary Judgment on ADEA Claim filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce, Stephen) (Entered: 03/18/2009)
333 Amended MOTION for Attorney Fees Rule 45 Request for Reimbursement by Interested Party Mercer Human Resource Consulting, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Toll, Christopher) (Entered: 03/23/2009)
334 RESPONSE to Motion re 328 MOTION to Strike 315 MOTION for Attorney Fees Rule 45 Request fir Reimbursement of Attorney's Fees filed by Interested Party Mercer Human Resource Consulting, Inc.. (Toll, Christopher) (Entered: 03/23/2009)
335 MEMORANDUM regarding 333 Amended MOTION for Attorney Fees Rule 45 Request for Reimbursement filed by Mercer Human Resource Consulting,

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 33 of 42

03/24/2009
03/31/2009 04/07/2009 04/15/2009 04/22/2009 04/27/2009 04/30/2009 05/19/2009
05/19/2009 05/20/2009 05/20/2009 05/26/2009

Inc..Motions referred to Magistrate Judge Craig B Shaffer by Judge Walker D. Miller on 3/23/09. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(wdmsec, ) (Entered: 03/23/2009)
336 MINUTE ORDER re: 333 Amended MOTION for Attorney Fees Rule 45 Request for Reimbursement filed by Mercer Human Resource Consulting, Inc. ORDERED that the parties are directed to D.C.ColoL.CivR. 7.1 C for the deadline(s) relating to the filing of the response and reply brief(s). By Magistrate Judge Craig B Shaffer on 3/24/09. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(cbssec) (Entered: 03/24/2009)
337 MINUTE ORDER re: 315 Motion for Attorney Fees and 328 Motion to Strike. These motions are now moot, by Judge Walker D. Miller on 3/31/09.(ebs, ) (Entered: 03/31/2009)
338 RESPONSE to Motion re 331 MOTION to Strike 324 Amended MOTION for Summary Judgment on ADEA Claim filed by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Nadel, Darren) (Entered: 04/07/2009)
339 BRIEF in Opposition re 333 Amended MOTION for Attorney Fees Rule 45 Request for Reimbursement filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Bruce, Stephen) (Entered: 04/15/2009)
340 MINUTE ORDER Telephone Hearing (Status Conference) set for 5/19/2009 09:00 AM before Judge Walker D. Miller, by Judge Walker D. Miller on 4/22/09. (gms, ) (Entered: 04/22/2009)
341 REPLY to Response to Motion re 331 MOTION to Strike 324 Amended MOTION for Summary Judgment on ADEA Claim filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce, Stephen) (Entered: 04/27/2009)
342 REPLY to Response to Motion re 333 Amended MOTION for Attorney Fees Rule 45 Request for Reimbursement filed by Interested Party Mercer Human Resource Consulting, Inc.. (Toll, Christopher) (Entered: 04/30/2009)
343 ORDER All matters at issue between the non−party Mercer (US) Inc. and the Plaintiffs, including Mercers Amended Rule 45 Request for Reimbursement of Attorneys Fees 333 shall be separately administered and tried on those issues. I hereby recuse myself from serving on all such issues concerning non−party Mercer (US) Inc. and direct that the Clerk of the court assign those issues to one of my colleagues by random draw, maintaining the case assignment with myself for all other issues, including all matters at issue between the Plaintiffs and Defendants, by Judge Walker D. Miller on 5/19/09. (gmssl, ) (Entered: 05/20/2009)
346 Minute Entry − Courtroom Minutes for Telephone Conference held before Judge Walker D. Miller on 5/19/2009. ORDERED: With regard to Plaintiffs' Motion to Alter or Amend Judgment [Doc. 313], Defendant may file supplemental authority by Tuesday, May 26, 2009. Plaintiffs may file a response by Tuesday, June 2, 2009. (Court Reporter Kara Spitler) (lbush) (Entered: 05/21/2009)
344 Letter from clerk advising that Senior District Judge Richard P. Matsch has been randomly assigned to issues concerning the non−party Mercer (US) Inc., pursuant to the 5/19/09 343 Order. (gmssl, ) (Entered: 05/20/2009)
345 ORDER VACATING ORDER OF REFERENCE The 335 Memorandum referring 333 Mercer's Amended Rule 45 Request for Reimbursement of Attorney's Fees to Magistrate Judge Shaffer is vacated, by Judge Richard P. Matsch on 5/20/09. (gmssl, ) (Entered: 05/20/2009)
347 SUPPLEMENTAL AUTHORITY re: 323 Response to Motion, Regarding Plaintiffs' Motion to Alter or Amend Judgment by Defendants El Paso Corporation, El Paso Pension Plan (Attachments: # 1 Exhibit A)(Nadel, Darren) (Modified on 5/27/2009 changed the title of the text to that of the document)(erv, ). (Entered: 05/26/2009)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 34 of 42

05/28/2009
06/02/2009 06/03/2009 06/03/2009 06/12/2009
06/18/2009 07/07/2009

348 Minute ORDER Setting Hearing on 333 Amended MOTION for Attorney Fees Rule 45 Request for Reimbursement for 6/12/2009 11:00 AM in Courtroom A before Judge Richard P. Matsch by Judge Richard P. Matsch on 05/28/09. (jjh, ) (Entered: 05/28/2009)
349 NOTICE re 347 Notice (Other), Notice (Other) Response to Defendants' Notice of Supplemental Authority by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy (Bruce, Stephen) (Entered: 06/02/2009)
350 Docket Annotation re: 349 Notice (Other). Counsel will re−file using the Response event. Text only entry − no document attached (sah, ) (Entered: 06/03/2009)
351 RESPONSE to 347 Notice (Other), Notice (Other) by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Bruce, Stephen) (Entered: 06/03/2009)
352 Minute Entry − Courtroom Minutes for before Judge Richard P. Matsch. Hearing on the Amended Rule 45 Request held on 06/12/2009. ORDERED: Mercer's Amended Rule 45 Request for Reimbursement of Attorney's Fees, March 23, 2009 333 , is denied.(Reporter FTR − K. Terasaki) (rpmcd) Modified on 6/18/2009 to include the hearing type(sah, ). (Entered: 06/12/2009)
353 Docket Annotation re: 352 Order on Motion for Attorney Fees,, Motion Hearing. Entry modified on 6/18/2009 to include the hearing type. Text only entry − no document attached (sah, ) (Entered: 06/18/2009)
354 TRANSCRIPT of Request For Reimbursement of Attorney's Fees held on June 12, 2009 before Judge Matsch. Pages: 1−12. Prepared by: Federal Reporting Service, Inc..

NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.

08/05/2009 08/17/2009
08/20/2009 08/21/2009 08/28/2009

Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 10/5/2009. (Federal Reporting Service, Inc., ) (Entered: 07/07/2009)
355 NOTICE of Change of Address by Christopher Hulbert Toll (Toll, Christopher) (Entered: 08/05/2009)
356 NOTICE re 323 Response to Motion, Second Supplemental Authority in Support of Response to Plaintiffs' Motion to Alter or Amend Judgment by Defendants El Paso Corporation, El Paso Pension Plan (Attachments: # 1 Exhibit A)(Nadel, Darren) (Entered: 08/17/2009)
357 RESPONSE to 356 Notice (Other), Notice (Other) by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit 1)(Bruce, Stephen) (Entered: 08/20/2009)
358 NOTICE of Change of Address by Christopher James Rillo (Rillo, Christopher) (Entered: 08/21/2009)
359 ORDER Granting 313 Plaintiffs' Motion to Alter or Amend Judgment. The 1/21/09 order 311 is amended to deny defendants' Motion for Summary Judgment on plaintiffs' ADEA claim. 312 Clerk's Judgment is vacated. Granting 331 Plaintiffs' Motion to Strike Amended Motion for Summary Judgment on ADEA Claim. Striking 324 Defendants' Amended Motion for Summary Judgment on ADEA Claim. Denying as moot 327 Motion for Leave to File Excess Pages. Defendants may file renewed motion for summary judgment on ADEA claim within 20 days, by Judge Walker D. Miller on 8/28/09.(gms, ) Modified on 8/31/2009 to create a linkage and to add additional text (gms, ). (Entered: 08/28/2009)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 35 of 42

08/31/2009 09/17/2009 09/17/2009 09/17/2009
09/21/2009 09/22/2009 10/06/2009 10/07/2009 10/07/2009
10/08/2009

360 Docket Annotation re: 359 Order. This docket entry was modified to create a linkage and to add additional text. Text only entry − no document attached (gms, ) (Entered: 08/31/2009)
361 MOTION for Leave to Exceed Page Limitations by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Proposed Order (PDF Only))(Nadel, Darren) (Entered: 09/17/2009)
362 Renewed MOTION for Summary Judgment on ADEA Claim by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Entered: 09/17/2009)
363 BRIEF in Support of 362 Renewed MOTION for Summary Judgment on ADEA Claim filed by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit A, Part 1, Amended Plan, # 2 Exhibit A, Part 2, # 3 Exhibit A, Part 3, # 4 Exhibit A, Part 4, # 5 Exhibit A, Part 5, # 6 Exhibit B, Deposition of Robert Bardwell, # 7 Exhibit C, Declaration of Kevin Minor, # 8 Exhibit 1 to Declaration of Kevin Minor, # 9 Exhibit 2 to Declaration of Kevin Minor, # 10 Exhibit 3 to Declaration of Kevin Minor, # 11 Exhibit 4 to Declaration of Kevin Minor, # 12 Exhibit 5 to Declaration of Kevin Minor, # 13 Exhibit D, Declaration of Michael Ward, # 14 Exhibit 1 to Declaration of Michael Ward, # 15 Exhibit 2 to Declaration of Michael Ward, # 16 Exhibit 3 to Declaration of Michael Ward, # 17 Exhibit 4 to Declaration of Michael Ward, # 18 Exhibit E, Deposition of Michael Ward, # 19 Exhibit F, Part 1, Jensen Opinion, # 20 Exhibit F, Part 2, # 21 Exhibit F, Part 3, # 22 Exhibit G, Vaughn Opinion, # 23 Exhibit H, Custer Opinion, # 24 Exhibit I, Walker Opinion, # 25 Exhibit J, Bozner Opinion, # 26 Exhibit K, Breitigan Opinion, # 27 Exhibit L, New York 10−3 Assoc. Opinion)(Nadel, Darren) Modified on 10/20/2009 to seal attachments 363−9, 363−11, 363−12, and 363−13, pursuant to the Minute Order of 10/20/09 (ebs, ). (Entered: 09/17/2009)
364 MINUTE ORDER granting 361 Motion for Leave to file oversized brief. By Jane Trexler, Judicial Assistant, Deputy Clerk, on behalf of Judge Walker D. Miller on 9/21/09.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wdmsec, ) (Entered: 09/21/2009)
365 SUPPLEMENT/AMENDMENT to 362 Renewed MOTION for Summary Judgment on ADEA Claim by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit)(Nadel, Darren) (Entered: 09/22/2009)
366 Unopposed MOTION for Extension of Time to File Response/Reply as to 362 Renewed MOTION for Summary Judgment on ADEA Claim by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 10/06/2009)
367 MEMORANDUM regarding 366 Unopposed MOTION for Extension of Time to File Response/Reply as to 362 Renewed MOTION for Summary Judgment on ADEA Claim filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. Motion referred to Magistrate Judge Craig B. Shaffer by Judge Walker D. Miller on 10/7/09. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(wdmsec, ) Modified on 10/8/2009 to delete duplicate text generated by the system (ebs, ). (Entered: 10/07/2009)
368 NOTICE re 363 Brief in Support of Motion, Relodging of Exhibit C to Memorandum in Support of Renewed Motion for Summary Judgment on ADEA Claim and Request to Remove or Seal Previous Exhibit C by Defendants El Paso Corporation, El Paso Pension Plan (Attachments: # 1 Exhibit C, # 2 Exhibit 1 to Exhibit C (Redacted), # 3 Exhibit 2 to Exhibit C, # 4 Exhibit 3 to Exhibit C (Redacted), # 5 Exhibit 4 to Exhibit C, # 6 Exhibit 5)(Nadel, Darren) Modified on 10/8/2009 to delete duplicate text generated by the system (ebs, ). (Entered: 10/07/2009)
369 MINUTE ORDER granting 366 Motion for Extension of Time to File Response and Reply Briefs to 362 Renewed MOTION for Summary Judgment on ADEA Claim. ORDERED that a response shall be filed no later than 11/2/09 and a reply is due no later than 11/17/09, by Magistrate Judge Craig B. Shaffer on 10/8/09. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (cbssec) Modified on 10/9/2009 to correct the signature date (ebs, ). (Entered: 10/08/2009)

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 36 of 42

10/08/2009 10/08/2009 10/08/2009 10/09/2009 10/20/2009 11/02/2009 11/02/2009
11/02/2009 11/16/2009 11/16/2009
11/17/2009
12/04/2009 12/04/2009 12/04/2009

370 Docket Annotation re: 368 Notice (Other). Counsel has been asked to draft and file a Motion to Seal the previous, unredacted version of Exhibit C. Text only entry − no document attached (ebs, ) (Entered: 10/08/2009)
371 Unopposed MOTION to Seal by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Entered: 10/08/2009)
372 MEMORANDUM regarding 371 Unopposed MOTION to Seal filed by El Paso Corporation, El Paso Pension Plan.Motions referred to Magistrate Judge Craig B. Shaffer by Judge Walker D. Miller on 10/8/09. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(wdmsec, ) (Entered: 10/08/2009)
373 Docket Annotation re: 369 Order on Motion for Extension of Time to File Response/Reply. This docket entry was modified to correct the signature date. Text only entry − no document attached (ebs, ) (Entered: 10/09/2009)
374 MINUTE ORDER granting 371 Defendants' Unopposed Motion to Seal. Clerk shall seal the documents attached with Exhibit C to the Declaration of Kevin Minor (doc. no. 363−7) as set forth in this Minute Order, by Magistrate Judge Craig B. Shaffer on 10/20/09.(ebs, ) (Entered: 10/20/2009)
375 Unopposed MOTION for Leave to File Excess Pages by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Proposed Order (PDF Only))(Bruce, Stephen) (Entered: 11/02/2009)
376 BRIEF in Opposition to 362 Renewed MOTION for Summary Judgment on ADEA Claim filed by Plaintiffs Wayne Tomlinson, Alice Ballesteros, Gary Muckelroy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Rule 56(f) Affidavit of Stephen R. Bruce, # 26 Supplemental Declaration of Claude Poulin, F.S.A., # 27 Declaration of Michael A. Crumley)(Bruce, Stephen) (Entered: 11/02/2009)
377 MINUTE ORDER granting 375 plaintiffs' Motion for Leave to File Excess Pages. By Jane Trexler, Judicial Assistant/Deputy Clerk, on behalf of Judge Walker D. Miller on 11/2/09.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wdmsec, ) (Entered: 11/02/2009)
378 Unopposed MOTION for Extension of Time to File Response/Reply as to 362 Renewed MOTION for Summary Judgment on ADEA Claim by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Entered: 11/16/2009)
379 MEMORANDUM regarding 378 Unopposed MOTION for Extension of Time to File Response/Reply as to 362 Renewed MOTION for Summary Judgment on ADEA Claim filed by El Paso Corporation, El Paso Pension Plan.Motions referred to Magistrate Judge Craig B. Shaffer by Judge Walker D. Miller on 11/16/09. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(wdmsec, ) (Entered: 11/16/2009)
380 MINUTE ORDER granting 378 Motion for Extension of Time to File Response/Reply. The deadline for Defendants to file a reply in support of their renewed 362 motion for summary judgment on ADEA claim is extended to on or before 12/4/09, by Magistrate Judge Craig B. Shaffer on 11/17/09.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (cbssec) (Entered: 11/17/2009)
381 Unopposed MOTION for Leave to File Excess Pages by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Entered: 12/04/2009)
382 REPLY to Response to 362 Renewed MOTION for Summary Judgment on ADEA Claim filed by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Entered: 12/04/2009)
383 ORDER granting 381 Defendants' Unopposed Motion for Leave to Exceed Page Limitations in connection with their reply brief in support of their Motion for Summary Judgment, by Judge Walker D. Miller on 12/4/09.(ebs, ) (Entered:

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03/10/2010 03/12/2010 03/12/2010 03/12/2010 03/29/2010 03/29/2010
06/18/2010 06/22/2010 07/26/2010 08/06/2010
08/19/2010 08/20/2010

12/04/2009)
384 MINUTE ORDER sua sponte setting a Telephonic Status Conference for 3/18/2010 at 10:45 a.m. Counsel shall coordinate to create a conference call among themselves before contacting the court (303.844.2117) at the scheduled time, by Magistrate Judge Craig B. Shaffer on 3/10/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(cbssec) (Entered: 03/10/2010)
385 Unopposed MOTION to Continue Telephonic Status Conference by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Proposed Order (PDF Only))(Nadel, Darren) (Entered: 03/12/2010)
386 MEMORANDUM regarding 385 Unopposed MOTION to Continue Telephonic Status Conference filed by El Paso Corporation, El Paso Pension Plan.Motions referred to Magistrate Judge Craig B. Shaffer by Judge Walker D. Miller on 3/12/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(wdmsec, ) (Entered: 03/12/2010)
387 MINUTE ORDER granting 385 Motion to Continue and resetting Telephonic Status Conference to 3/29/2010 at 10:45 a.m. Counsel shall coordinate to create a conference call among themselves before contacting the court (303.844.2117) at the scheduled time, by Magistrate Judge Craig B. Shaffer on 3/12/10.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (cbssec) (Entered: 03/12/2010)
388 NOTICE of Entry of Appearance by Robyn A. Kashiwa on behalf of Mercer Human Resource Consulting, Inc. (Kashiwa, Robyn) (Entered: 03/29/2010)
389 COURTROOM MINUTES − Minute Entry for proceedings held before Magistrate Judge Craig B. Shaffer: A Telephonic Status Conference was held on 3/29/2010. ORDERED: The court will not set any discovery deadlines or any further discovery dates. Counsel are required to put together a telephone conference call and contact chambers within 72 hours of a ruling on the pending Renewed Motion for Summary Judgment, # 362 , or alternatively, within 72 hours of a decision by the Tenth Circuit on the case that Mr. Bruce is handling, whichever is the earliest. By Magistrate Judge Craig B. Shaffer. (Court Reporter FTR − Linda Kahoe) (cbscd) (Entered: 03/29/2010)
390 NOTICE re 362 Renewed MOTION for Summary Judgment on ADEA Claim (Supplemental Authority) by Defendants El Paso Corporation, El Paso Pension Plan (Attachments: # 1 Exhibit A)(Nadel, Darren) (Entered: 06/18/2010)
391 RESPONSE to 390 Notice (Other) Supplemental Authority by Plaintiffs Alice Ballesteros, Gary Muckelroy, Wayne Tomlinson. (Bruce, Stephen) (Entered: 06/22/2010)
392 ORDER granting 362 Renewed Motion for Summary Judgment on ADEA Claim. Defendants may have their costs, by Judge Walker D. Miller on 7/26/10.(ebs, ) (Entered: 07/26/2010)
393 AMENDED JUDGMENT by Clerk pursuant to the 392 Order on Renewed Motion for Summary Judgment. Judgment is entered against Plaintiffs and in favor of Defendants on Claim I. Judgment is entered in favor of Defendants and against Plaintiffs. Defendants are awarded appropriate costs upon the filing of a Bill of Costs with the Clerk within fourteen days of entry of judgment. El Paso Corporation and El Paso Pension Plan are awarded additional allowable costs. This cause of action and case are dismissed, by Clerk on 8/6/10. (ebs, ) (Entered: 08/06/2010)
394 MOTION to Bifurcate Attorney's Fees Process and For an Extension of Time to File Motion for Attorney's Fees by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Proposed Order (PDF Only))(Nadel, Darren) (Entered: 08/19/2010)
395 Proposed Bill of Costs by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C Part 1, # 4 Exhibit C Part 2, # 5 Exhibit C Part 3, # 6 Exhibit C Part 4, # 7 Exhibit C Part 5, # 8 Exhibit C Part 6, # 9 Exhibit C Part 7, # 10 Exhibit D, # 11 Exhibit E Part 1, # 12 Exhibit E Part 2, # 13 Exhibit E Part 3, # 14 Exhibit F, # 15 Exhibit G, # 16 Exhibit H, # 17

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08/23/2010 08/24/2010
08/25/2010
08/25/2010
08/25/2010 08/27/2010 09/08/2010 09/09/2010 09/15/2010 09/17/2010 09/17/2010 09/21/2010 09/21/2010 09/22/2010

Exhibit I Part 1, # 18 Exhibit I Part 2, # 19 Exhibit J)(Nadel, Darren) (Entered: 08/20/2010)
396 BRIEF in Opposition to 394 MOTION to Bifurcate Attorney's Fees Process and For an Extension of Time to File Motion for Attorney's Fees filed by Plaintiffs Alice Ballesteros, Gary Muckelroy, Wayne Tomlinson. (Attachments: # 1 Exhibit 1)(Bruce, Stephen) (Entered: 08/23/2010)
397 NOTICE OF APPEAL as to 392 Order on Motion for Summary Judgment, 393 Clerk's Judgment,, 311 Order on Motion for Reconsideration,, Order on Motion for Partial Summary Judgment,,, 108 Order on Motion for Leave,,,,,,,,,,,, Order on Motion to Dismiss,,,, Order on Motion for More Definite Statement,,,, Order on Motion to Strike,,, 213 Order on Motion to Certify Class,,,,, Order on Motion for Judgment,,,,, Order on Motion for Leave,,,,, Order on Motion to Strike,,,, by Plaintiffs Alice Ballesteros, Gary Muckelroy, Wayne Tomlinson (Bruce, Stephen) (Entered: 08/24/2010)
398 LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 397 Notice of Appeal, filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy to the U.S. Court of Appeals. (Retained counsel; Fee paid) (Attachments: # 1 Docket Sheet, # 2 Preliminary Record including Notice of Appeal, # 3 Receipt)(bjrsl, ) (Entered: 08/25/2010)
399 ORDER granting 394 Defendants' Motion to Bifurcate Attorney's Fees Process and for an Extension of Time to File Motion for Attorney's Fees, upon the condition that their motion include a good faith estimate of the dollar amount of their claim. Defendants may file their motion for attorney fees by 8/27/10, by Judge Walker D. Miller on 8/25/10.(ebs, ) (Entered: 08/25/2010)
400 USCA Case Number 10−1385 for 397 Notice of Appeal, filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. (bjrsl, ) (Entered: 08/25/2010)
401 MOTION for Attorney Fees by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Proposed Order (PDF Only))(Nadel, Darren) (Entered: 08/27/2010)
402 TRANSCRIPT ORDER FORM re 397 Notice of Appeal,, by Plaintiffs Alice Ballesteros, Gary Muckelroy, Wayne Tomlinson (Bruce, Stephen) (Entered: 09/08/2010)
403 LETTER TO USCA and all counsel certifying the record is complete as to 397 Notice of Appeal,, filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. ( Appeal No. 10−1385) (gmssl, ) (Entered: 09/09/2010)
404 Unopposed MOTION to Withdraw as Attorney (Counsel of Record) by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Proposed Order (PDF Only))(Randall, Melissa) (Entered: 09/15/2010)
405 NOTICE of Rescheduled Bill of Costs Hearing by Defendants El Paso Corporation, El Paso Pension Plan (Nadel, Darren) (Entered: 09/17/2010)
406 BRIEF in Opposition to 401 MOTION for Attorney Fees filed by Plaintiffs Alice Ballesteros, Gary Muckelroy, Wayne Tomlinson. (Attachments: # 1 Affidavit of Wayne Tomlinson, # 2 Affidavit of Alice Ballesteros, # 3 Affidavit of Gary Muckelroy, # 4 Affidavit of Stephen Bruce)(Bruce, Stephen) (Entered: 09/17/2010)
407 TRANSCRIPT ORDER FORM re 397 Notice of Appeal,, by Defendants El Paso Corporation, El Paso Pension Plan (Nadel, Darren) (Entered: 09/21/2010)
408 TRANSCRIPT ORDER FORM re 397 Notice of Appeal,, by Defendants El Paso Corporation, El Paso Pension Plan (Nadel, Darren) (Entered: 09/21/2010)
409 LETTER TO USCA and all counsel as to 397 Notice of Appeal, filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. The record in this case was certified as complete on September 9, 2010 and was certified prematurely as the appellees have ordered transcripts for the appeal. District court will re−certify the record when the transcripts have been filed. ( Appeal No. 10−1385) (bjrsl, ) (Entered: 09/22/2010)

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09/27/2010

410 TRANSCRIPT of Telephone Hearing held on 5−19−09 before Judge Miller. Pages: 1−11.

NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.

09/27/2010 09/27/2010 09/28/2010 09/29/2010 09/30/2010 10/01/2010 10/04/2010 10/07/2010 10/07/2010 10/13/2010
11/02/2010 11/02/2010

Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 12/30/2010. (Spitler, Kara) (Entered: 09/27/2010)
411 CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 54.1 by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Exhibit A)(Nadel, Darren) (Entered: 09/27/2010)
415 REPORTER TRANSCRIPT ORDER FORM filed by Kara Spitler; Transcripts ordered 05/19/09 re: 397 Notice of Appeal. Transcript due by 10/4/2010. (bjrsl, ) (Entered: 09/30/2010)
412 Costs Taxed in amount of $ 5,228.25 against Plaintiffs. (ebs, ) (Entered: 09/28/2010)
413 MOTION for Extension of Time to (File Motion to Review Costs Awarded by Clerk of the Court) by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Proposed Order (PDF Only))(Nadel, Darren) (Entered: 09/29/2010)
414 MINUTE ORDER granting 413 Motion for Extension of Time. The Defendants' shall file a Motion to Review Costs Awarded by the Clerk on or before October 13, 2010, by Judge Walker D. Miller on 9/30/2010.(gkram) (Entered: 09/30/2010)
416 Unopposed MOTION for Extension of Time to File Response/Reply as to 401 MOTION for Attorney Fees by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Proposed Order (PDF Only))(Nadel, Darren) (Entered: 10/01/2010)
417 MINUTE ORDER granting 416 Motion for Extension of Time to File Reply. Defendants shall file their Reply in Support of Motion for Attorney Fees on or before October 7, 2010. by Judge Walker D. Miller on 10/4/10.(gkram) Modified on 10/5/2010 to create linkage (ebs, ). (Entered: 10/04/2010)
418 REPORTER TRANSCRIPT ORDER FORM filed by Adrienne Whitlow; Transcripts ordered See order form re: 397 Notice of Appeal by El Paso Corp. Transcript due by 11/4/2010. (bjrsl, ) (Entered: 10/07/2010)
419 REPLY to Response to 401 MOTION for Attorney Fees filed by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Entered: 10/07/2010)
420 MOTION for Costs by Defendants El Paso Corporation, El Paso Pension Plan. (Attachments: # 1 Declaration of Darren E. Nadel, # 2 Exhibit Exhibit 1 to Declaration of Darren E. Nadel, # 3 Exhibit Exhibit 2 to Declaration of Darren E. Nadel, # 4 Exhibit Exhibit 3 to Declaration of Darren E. Nadel, # 5 Exhibit Exhibit 4 to Declaration of Darren E. Nadel, # 6 Exhibit Exhibit 5 to Declaration of Darren E. Nadel, # 7 Exhibit Exhibit 6 to Declaration of Darren E. Nadel)(Nadel, Darren) (Entered: 10/13/2010)
421 Minute ORDER granting 404 Motion to Withdraw as Attorney by Judge Walker D. Miller on 11/02/10.(jjh, ) (Entered: 11/02/2010)
422 BRIEF in Opposition to 420 MOTION for Costs filed by Plaintiffs Alice Ballesteros, Gary Muckelroy, Wayne Tomlinson. (Bruce, Stephen) (Entered: 11/02/2010)

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11/05/2010

423 TRANSCRIPT of Scheduling Conference held on 5−27−05 before Magistrate Judge Schlatter. Pages: 1−14. Prepared by: Adrienne Whitlow.

NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.

11/05/2010

Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 2/7/2011. (Whitlow, Adrienne) Modified on 11/8/2010 to correct date of hearing in the text of the entry. (bjrsl, ). (Entered: 11/05/2010)
424 TRANSCRIPT of Status Conference held on 9−11−06 before Magistrate Judge Hegarty. Pages: 1−17. Prepared by: Adrienne Whitlow.

NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.

11/05/2010 11/05/2010 11/05/2010

Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 2/7/2011. (Whitlow, Adrienne) (Entered: 11/05/2010)
425 TRANSCRIPT of Scheduling Conference held on 10−25−06 before Magistrate Judge Hegarty. Pages: 1−23. Prepared by: Adrienne Whitlow. <P> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. </P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 2/7/2011. (Whitlow, Adrienne) (Entered: 11/05/2010)
426 TRANSCRIPT of Status Conference held on 11−30−07 before Magistrate Judge Shaffer. Pages: 1−16. Prepared by: Adrienne Whitlow. <P> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. </P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 2/7/2011. (Whitlow, Adrienne) (Entered: 11/05/2010)
427 TRANSCRIPT of Status Conference held on 12−17−07 before Magistrate Judge Shaffer. Pages: 1−15. Prepared by: Adrienne Whitlow.

NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 41 of 42

11/05/2010 11/05/2010 11/05/2010 11/05/2010

within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.
Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 2/7/2011. (Whitlow, Adrienne) Modified to adjust paragraphs on 2/15/2011 (lam, ). (Entered: 11/05/2010)
428 TRANSCRIPT of Status Conference held on 1−23−08 before Magistrate Judge Shaffer. Pages: 1−30. Prepared by: Adrienne Whitlow.
NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.
Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 2/7/2011. (Whitlow, Adrienne) Modified on 11/8/2010 to correct the number of pages of the document (ebs, ). (Entered: 11/05/2010)
429 TRANSCRIPT of Discovery Conference held on 1−29−08 before Magistrate Judge Shaffer. Pages: 1−12. Prepared by: Adrienne Whitlow.
NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.
Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 2/7/2011. (Whitlow, Adrienne) Modified on 11/8/2010 to correct the number of pages of the document (ebs, ). (Entered: 11/05/2010)
430 TRANSCRIPT of Discovery Conference held on 3−12−08 before Magistrate Judge Shaffer. Pages: 1−42. Prepared by: Adrienne Whitlow.
NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.
Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 2/7/2011. (Whitlow, Adrienne) Modified on 2/15/2011 to adjust paragraphs (lam, ). (Entered: 11/05/2010)
431 TRANSCRIPT of Motions Hearing held on 7−10−08 before Magistrate Judge Shaffer. Pages: 1−18. Prepared by: Adrienne Whitlow.

Case: 1:04-cv-2686 As of: 11/07/2016 08:10 PM MST 42 of 42

11/05/2010
11/08/2010 11/19/2010 03/30/2011 06/09/2011 08/11/2011 10/03/2011 12/27/2011 02/28/2012

NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.
Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 2/7/2011. (Whitlow, Adrienne) Modified on 11/8/2010 to edit text to correct the type of hearing held (ebs, ). (Entered: 11/05/2010)
432 TRANSCRIPT of Status Conference held on 3−29−10 before Magistrate Judge Shaffer. Pages: 1−14. Prepared by: Adrienne Whitlow.
NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.
Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 2/7/2011. (Whitlow, Adrienne) Modified to adjust paragraphs on 2/15/2011 (lam, ). (Entered: 11/05/2010)
433 LETTER TO USCA and all counsel certifying the record is complete as to 397 Notice of Appeal, filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy. All appeal transcripts ordered by the appellee's have been filed. ( Appeal No. 10−1385) (bjrsl, ) (Entered: 11/08/2010)
434 REPLY to Response to 420 MOTION for Costs (In Support of Taxation) filed by Defendants El Paso Corporation, El Paso Pension Plan. (Nadel, Darren) (Entered: 11/19/2010)
435 ORDER denying 401 Defendants' Motion for Attorneys' Fees, by Judge Walker D. Miller on 3/30/11.(mnf, ) (Entered: 03/30/2011)
436 ORDER granting in part and denying in part 420 El Paso's Motion for Taxation of Costs. It is granted with respect to Defendants' request for costs incurred in connection with the deposition transcripts of Claude Poulin ($1,447.65) and Robert Bardwell ($1,328.00). Accordingly, the costs awarded are increased from $5,220.25 to $7,995.90. The motion is otherwise denied. By Judge Walker D. Miller on 6/9/11.(mnf, ) (Entered: 06/09/2011)
437 USCA Opinion and Judgment as to 397 Notice of Appeal,, filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy: The judgment of the district court is affirmed. (USCA Case No. 10−1385) (This document is not the Mandate) (Attachments: # 1 USCA Judgment)(bjrsl, ) (Entered: 08/12/2011)
438 MANDATE of USCA as to 437 USCA Order/Opinion/Judgment, 397 Notice of Appeal, filed by Alice Ballesteros, Wayne Tomlinson, Gary Muckelroy : (USCA Case No. 10−1385) (gmssl, ) (Entered: 10/03/2011)
439 Letter from U.S. Court of Appeals regarding Petition for Writ of Certiorari which was filed on 12/22/11 re 397 Notice of Appeal by Wayne Tomlinson; assigned Supreme Court No. 11−795 ( Appeal No. 10−1385) (bjrsl, ) (Entered: 12/28/2011)
440 Letter from U.S. Court of Appeals regarding Petition for Writ of Certiorari which was denied re 397 Notice of Appeal by Wayne Tomlinson; assigned Supreme Court No. 11−795 ( Appeal No. 10−1385) (bjrsl, ) (Entered: 02/29/2012)