Stephen R. Bruce
Attorney for Plaintiffs

202.289.1117 phone
stephen.bruce@prodigy.net

1667 K Street NW, Suite 410
Washington, DC 20006

>Complaint

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

 

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.

 

Civil No. 04cv02686-WDM-CBS

CLASS ACTION COMPLAINT
JUDGE WALKER D. MILLER

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, longerservice 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.

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.

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 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).

The full Complaint is 17 pages in length. Click to download the full Complaint in pdf format. You may wish to download Adobe Reader, which is needed to read pdf files.

 

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