Tenth Circuit: “Wear Away Period” Does Not Discriminate on Age

On August 11, 2011, the Tenth Circuit Court of Appeals ruled that a district court had properly dismissed an Age Discrimination in Employment Act and ERISA claim against an employer.  In Tomlinson v. El Paso Corporation, the court stated that it would determine whether an ERISA plan was discriminatory on the basis of age by looking at whether the crediting of their pension plan was discriminatory rather than whether the resulting output from the plan was discriminatory.  The court was unpersuaded by the argument of the plaintiffs that, because they were older and had benefited from a more generous plan, they were discriminated against during the transition period because they effectively did not accrue benefits during the transition since they could choose between benefits of the new plan or the old plan and the older plan would be more generous for a number of years.  The court dismissed this argument by stating “we will not hold that an otherwise permissible plan discriminates against older employee merely because older employees are more likely to qualify for a greater benefit.”