Campbell v. BankBoston, N.A.

United States Court of Appeals
For the First Circuit

No. 02-1695

JAMES W. CAMPBELL,
Plaintiff, Appellant,

v.

BANKBOSTON, N.A.; BANKBOSTON SEPARATION PAY PLAN; HELEN DRINAN,
administrator; BANKBOSTON CASH BALANCE RETIREMENT PLAN;
RETIREMENT PLAN COMMITTEE, administrator,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker,* Senior U.S. District Judge]

Before

Lynch, Circuit Judge,
Farris, Senior Circuit Judge,**
and Lipez, Circuit Judge.

Robert O. Berger for appellant.

Robert B. Gordon with whom Joseph P. Mingolla and Ropes
& Gray were on brief for appellees.

March 7, 2003

*
Of the Southern District of New York, sitting by
designation.
**
Of the Ninth Circuit, sitting by designation.
 LYNCH, Circuit Judge. At the heart of this case is the

debate over cash balance pension plans, a new type of plan that

favors, in many cases, younger workers over those closer to

retirement age. The plaintiff, James W. Campbell, is a former

employee of BankBoston, a business that switched from a traditional

defined benefit plan to a cash balance system. He sued, alleging

violations of the Employee Retirement Income Security Act (ERISA),

29 U.S.C. § 1001 et seq. (2000), and the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. § 621 et seq. We affirm the

district court's entry of summary judgment for the defendants.

I.

There is no dispute as to the facts. Campbell was

continuously employed by BankBoston, N.A. and its corporate

predecessors for thirty-seven years, through September 30, 1998.

For the entirety of his employment, he worked in the domestic

institutional custody business, which held and traded securities

for mutual, pension, and endowment funds. Campbell had reached the

position of senior fiduciary specialist; he was primarily

responsible for ensuring compliance with Regulation 9 of the Office

of the Comptroller of the Currency, in the United States Treasury

Department. See 12 C.F.R. pt. 9 (2002) (regulating the fiduciary

activities of national banks).

Two different plans are at issue in this case. The first

is a Separation Pay Plan, adopted in 1996 and amended in 1998.

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Campbell says he was entitled to benefits under the Plan. The

second is the retirement plan, which BankBoston converted to a cash

balance plan in 1989 and amended in 1997. The effect of the

conversion and amendment, in practice, was to reduce Campbell's

retirement benefits by about $3,000 a year from what he would have

expected to receive had the plan not been amended in 1997.

A. Separation Pay Plan

BankBoston's predecessor, the First National Bank of

Boston, adopted a Separation Pay Plan on June 15, 1996, which

provided compensation for employees "whose employment is terminated

as a result of work force reduction or job elimination." It did

not apply to those who voluntarily left the company. It also

required employees to make a "reasonable and effective effort to

secure a comparable position" of employment, defined as one with a

base salary within 10% of the current job and which "requires a

reasonably similar employment background and skill set." The plan

paid two weeks base pay for each full year of service. The Plan

Administrator was given sole discretion to establish rules to

administer the plan, to interpret and construe it, and to determine

eligibility. Moreover, the administrator had the power to amend,

modify, or discontinue the plan for any reason at any time.

On July 20, 1998, BankBoston announced the sale of its

domestic institutional custody business to Investors Bank and Trust

(IBT). IBT is not a national bank and thus does not fall under the

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scope of Regulation 9. See id. § 9.1(c). The agreement with

BankBoston required IBT to offer comparable jobs to all BankBoston

custody employees. The sale closed on October 1, 1998.

BankBoston announced that it would treat a refusal to

accept a position with IBT as a "voluntary resignation" under the

separation plan, thus denying the severance package to those

custody employees who did not accept a job with IBT. Many

employees complained that this interpretation was contrary to the

severance plan, which only denied benefits if employees did not

pursue "comparable internal job opportunities." The employees took

that phrase to mean BankBoston jobs, not job offers from other

companies. In response, on September 30, 1998, the last day of

employment for those working in the custody business, the plan

administrator, Helen Drinan, amended the plan. The new amendment

excluded those who refuse an offer of employment from "an employer

who acquires any of the assets or operations of a BankBoston

company or business."

Campbell was offered a position at IBT. Because IBT was

not a national bank, it did not need to comply with Regulation 9;

thus, the job IBT offered to Campbell was not a Regulation 9

compliance position. IBT instead offered Campbell the position of

Compliance Manager within its Trust and Custody Unit. Campbell

declined the offer of employment. As a result, BankBoston did not

pay Campbell under the severance plan. At stake was two weeks of

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pay for each of the thirty-seven years that Campbell had worked for

BankBoston, a total of more than $100,000.

B. The Cash Balance Plan

BankBoston's retirement plan prior to 1989 was a

traditional defined benefit plan. A defined benefit plan pays an

annuity1 based on the retiree's earnings history, usually the most

recent or highest-paid years, and the number of completed years of

service to the company. The BankBoston plan was determined by a

formula which factored in the retiree's years of service, the five-

year average compensation at time of retirement, and the retiree's

Social Security primary benefit.2

On January 1, 1989, BankBoston adopted the Cash Balance

Retirement Plan. Cash balance plans are a type of defined benefit

plan that guarantee an employee a certain employer contribution

level, usually an annual percentage of salary, plus a fixed

percentage of interest. Cash balance plans may superficially

resemble defined contribution plans, in which an employer deposits

a fixed amount into an account. However, cash balance plans are

1
An annuity is simply an obligation to pay a fixed sum of
money periodically. See Black's Law Dictionary 88 (7th ed. 1999).
The BankBoston plan provided for a monthly benefit.
2
More specifically, the plan multiplied the average of the
five highest years of salary by the years of service; the
retirement annuity was 1.75% of that number, offset by various
other factors such as a reduction for retirement before age 62 and
an offset for Social Security payments. Campbell's five-year
average salary was $70,408.39 at the end of 1996 and $74,418.38 by
October 1, 1998.

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actually defined benefit plans, because the level of interest is

guaranteed.

The plan version adopted in 1989 contained a "Benefit

Safeguard Minimum Benefit" guaranteeing that, for long-term

employees such as Campbell, the retirement benefits would be at

least as much as would have been payable had the previous defined

benefit plan still been in place upon their retirement. One effect

of this provision was that the benefits due under the previous plan

continued to accrue for those long-term employees protected by the

grandfather clause.

In 1995, BankBoston commissioned a study of its benefits

program, which concluded that this grandfather provision would cost

the company a significant amount of money. Thereafter, on January

1, 1997, BankBoston again amended its retirement plan; this

amendment eliminated the continued accrual of benefits under the

previous defined benefit plan after December 31, 1996. There is no

contention that this amendment lacked Internal Revenue Service

(IRS) approval. All accrued benefits were converted to cash

balance accounts by calculating the value of accrued benefits as of

the end of 1996 and crediting that amount in separate conversion

accounts, where they continued to earn interest. Because Campbell

would receive less under a cash balance formulation than under the

Benefit Safeguard, even after that provision had ceased to accrue

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benefits, the December 31, 1996 amendment had the effect of ending

Campbell's pension accrual altogether.

After the sale of BankBoston's custody business to IBT,

Campbell applied for retirement benefits. Under the retirement

plan in place before January 1, 1997, Campbell's benefit under the

older defined benefit plan would have kept accruing until his

retirement on September 30, 1998. He would therefore have expected

to receive $31,882.12 per year. However, under the 1997 plan

amendment, Campbell was due only $28,798.10 per year, an annual

difference of $3,084.02.3

II.

Campbell filed a complaint in federal court on December

10, 1999. The original complaint named only BankBoston as a

defendant; Campbell later amended the complaint to include

additional defendants: the Separation Pay Plan; Helen Drinan, the

plan administrator; the Cash Balance Retirement Plan; and the

Retirement Plan Committee. The amended complaint contained seven

causes of action. Campbell alleged that the Separation Pay Plan's

denial of benefits constituted a violation of ERISA, 29 U.S.C.

§ 1001 et seq., and a breach of the covenant of good faith and fair

dealing. He alleged that the Retirement Plan's replacement of the

3
These annual benefits represent the amount Campbell would
receive under a single life annuity, payable until death.
BankBoston's plan also permitted other annuity options, such as
joint and survivor annuities.

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older defined benefit plan with a cash balance plan violated ERISA,

the covenant of good faith and fair dealing, and ADEA. Campbell

also alleged that he was wrongly terminated because he was not

permitted to continue to work for BankBoston following the sale of

the custody business to IBT, and that he was discriminated against

on the basis of age because he and other highly compensated

employees were not permitted to participate in an early retirement

program.

On May 17, 2002, the district court granted the

defendants' motion for summary judgment on all seven counts.

Campbell v. BankBoston, N.A., 206 F. Supp. 2d 70, 73 (D. Mass.

2002). Campbell appeals the grant of summary judgment as to his

ERISA challenge to BankBoston's pension plan, his ERISA challenge

to the denial of payment of separation plan benefits, and his age

discrimination challenge to the retirement plan.4

III.

A. Standard of Review

We review a grant of summary judgment "de novo,

construing the record in the light most favorable to the nonmovant

and resolving all reasonable inferences in that party's favor."

Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st

Cir. 2002). When reviewing the actions of plan administrators for

4
Campbell does not appeal his wrongful termination claim, his
claim of discrimination based on the early retirement program, or
either claim based on the covenant of good faith and fair dealing.

-8-
challenges to denials of benefits under 29 U.S.C. § 1132(a)(1)(B),

the standard of review depends on the discretion afforded the

administrator. If the benefit plan grants the administrator

"discretionary authority to determine eligibility for benefits or

to construe the terms of the plan," we review only to ensure that

the administrator's decision is not "arbitrary or capricious"; if

the plan does not grant such discretionary authority, we review

benefit decisions de novo. Firestone Tire & Rubber Co. v. Bruch,

489 U.S. 101, 109-15 (1989); see Terry v. Bayer Corp., 145 F.3d 28,

37 & n.6 (1st Cir. 1998). We need not decide which standard

applies because, for reasons we explain below, we do not reach the

issue of Campbell's only challenge to a plan administrator's

decision.

B. Separation Pay Plan

Campbell contends that at the time his position at

BankBoston was terminated, he was owed severance pay under the

Severance Pay Plan. He challenges the denial of severance plan

benefits under 29 U.S.C. § 1132(a)(1)(B), which creates an action

for plan participants or beneficiaries to recover benefits due.

The severance plan amendment adopted on September 30,

1998, clearly and unequivocally denied Campbell severance pay upon

his refusal to accept a job offer from IBT. Campbell's challenge,

then, depends both on a claim that the severance plan was

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impermissibly amended, and that he was due severance pay under the

original plan.

The Separation Pay Plan listed seven exceptions to

separation pay eligibility. One of these exceptions included

employees who "accept a position with another Bank of Boston

company or continue employment with an employer who acquires any of

the assets or operations of a Bank of Boston company or business."

On September 30, 1998, Drinan modified this exception to include

employees who "accept a position with another BankBoston company or

continue employment with, or refuse an offer of employment by, an

employer who acquires any of the assets or operations of a

BankBoston company or business."

Campbell argues that the amendment was invalid because

the plan administrator owes fiduciary duties to him. Thus, he

says, his right to severance pay should be determined under the

text of the plan before it was amended.

Fiduciary duties do attach to persons who exercise

discretionary authority or control respecting "management of [the]

plan or . . . management or disposition of its assets." 29 U.S.C.

§ 1002(21)(A). A person has such fiduciary duties only when

fulfilling these defined roles. The act of amending the terms of

a plan is not one to which a fiduciary duty applies. See Curtis-

Wright Corp. v. Schoonejongen, 514 U.S. 73, 78 (1995) (applying

this distinction to welfare benefit plans such as severance plans);

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see also Lockheed Corp. v. Spink, 517 U.S. 882, 890-91 (1996)

(extending this rule to pension benefit plans). This is true even

when the employer's amendment effectively makes a decision "such as

who is entitled to receive Plan benefits and in what amounts or how

such benefits are calculated." Hughes Aircraft Co. v. Jacobson,

525 U.S. 432, 444 (1999).

Campbell argues that the existence of a fiduciary duty

depends not on the type of action taken but on the identity of the

actor: whether the plan sponsor or an independent administrator is

amending the plan. Because the plan administrator, Drinan, was a

fiduciary with regard to the management and distribution of the

assets, Campbell rationalizes, her fiduciary duty also applied to

her amendment of the plan. This argument fails. The ERISA

fiduciary duty doctrine envisions that one entity will have

fiduciary duty attach to some activities but not others; the

existence of a duty turns not on who acts but on the nature of the

action. See, e.g., Lockheed Corp., 517 U.S. at 890; Curtiss-Wright

Corp., 514 U.S. at 78. Though Drinan's management decisions were

under the auspices of fiduciary duty, her decision to amend the

plan was not. The fact that here the plan administrator was a

natural person and not a corporation -- as in many of the Supreme

Court decisions -- is of no moment; ERISA defines "person" to mean

both individuals and organizations, such as corporations, 29 U.S.C.

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§ 1002(9). As a result, that is not a relevant distinction under

ERISA.

There are statutory limits, imposed by ERISA, on the

ability of an employer to amend a plan involving vested benefits.

For example, amendments may not decrease the accrued benefit of a

participant. 29 U.S.C. § 1054(g).5 Until they are paid, however,

severance plan benefits have not vested. A severance plan is

defined as a "welfare benefit plan," see id. § 1002(1);

Massachusetts v. Morash, 490 U.S. 107, 116 (1989), and as such,

severance plans are exempted from the vesting and funding sections

of ERISA, 29 U.S.C. §§ 1051(1), 1081(a)(1); see Allen v. Adage,

Inc., 967 F.2d 695, 698 (1st Cir. 1992). Thus, employers may amend

or eliminate a severance pay plan at any time. Curtiss-Wright

Corp., 514 U.S. at 78; Reichelt v. Emhart Corp., 921 F.2d 425, 430

(2nd Cir. 1990).

Because the plan administrator was not acting as a

fiduciary when she amended the severance plan, and because

employers have the right to amend or end a welfare benefit plan at

any time, the September 30, 1998 amendment to BankBoston's

Separation Pay Plan was proper. Campbell does not contest that,

under the terms of the amendment to the plan, he was not owed

5
Cf. Cogan v. Phoenix Life Ins. Co., 310 F.3d 238, 242 (1st
Cir. 2002) (holding that this section does not apply to unfunded
"top hat" plans).

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severance pay. It was not a violation of ERISA for Campbell not to

have been paid benefits under the Separation Pay Plan.6

C. Retirement Plan

1. Background

The adoption of cash balance plans, and in particular the

transition to such plans from more traditional annuity-based

defined benefit plans, has become increasingly controversial. The

first cash balance plan was adopted in 1985. Since that time,

hundreds of companies have converted to the newer cash balance

plans.

In traditional defined benefit retirement plans, such as

BankBoston's pre-1989 plan, a large share of the pension benefits

are reaped by older employees in their final years of service.

This is because the benefits are calculated based on years of

service to the company and on the average of the highest years of

salary, which usually occur in the final years. By contrast, in a

cash balance system, much of the pension benefit is gained in the

early years of service, because the pension account earns interest.

The more time there is until retirement, the more a given amount in

the account will grow. Thus, even though early additions to the

pension account may be based on a percentage of a much smaller

6
Because we find that the amendment to the plan was proper
under ERISA, we need not consider Campbell's contention that he was
owed severance pay under the plan version which existed before the
amendment.

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salary, the effects of time mean that these additions will

contribute to the final total much more than larger additions to

the account entered closer to retirement.

There are many reasons why companies may wish to switch

to a cash balance plan. Cash balance plans favor younger workers,

while traditional defined benefit plans favor experienced employees

who plan on staying with one company. Cash balance plans are also

more portable than annuity-based plans, because they can be taken

as a lump sum upon leaving the company. Thus, a move to a cash

balance plan is one way for a company to attract younger and more

mobile workers. Furthermore, if a company has an older workforce,

a cash balance plan may be a cheaper plan to administer. Under a

traditional plan, the largest benefits are earned in the years

immediately preceding retirement. Because there is little time for

interest to accrue, an annuity purchased to secure those benefits

will be more expensive. Cash balance plans award benefits earlier

in an employee's career, and so they may be less expensive for

employers.

If begun from scratch, cash balance plans would not be

terribly controversial. The controversy engenders from the

transition from traditional defined benefit plans. Older workers,

such as Campbell, expected to see their pension benefits rise

dramatically as a result of their service just before retirement.

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Instead, as a result of their companies' adoption of cash balance

plans, their pension increases under the old plans ceased.

Under some plans, these workers whose traditional

benefits have ceased to accrue are at least entitled to cash

balance plan benefits. However, some transition schemes, including

that employed by BankBoston, include a "wear-away" provision. This

provision specifies that employees' pension entitlement does not

grow until their pension benefits, as calculated under the new cash

balance system, equal their actual accrued benefits under the old

system. Benefits already earned under an old plan may not be taken

away, see I.R.C. § 411(d)(6)(A) (2000); 29 U.S.C. § 1054(g), but

benefits expected but not yet accrued are not similarly protected.

The result is that for many workers, including Campbell, their

pension benefits stop accruing completely in their final years of

service, when their expectation was that during these years, the

benefits would build up the most. See generally E.A. Zelinsky, The

Cash Balance Controversy, 19 Va. Tax Rev. 683, 695-99, 702-04

(2000).

2. Accrued Benefits

As a result of BankBoston's conversion to a cash balance

plan with a wear-away provision, Campbell's annual pension was

$3,084.02 less than it would have been had the old plan been kept

in place until his retirement. He argues that this reduction

amounts to a forfeiture of an accrued benefit in violation of 29

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U.S.C. § 1054(g). There was no forfeiture, because no accrued

benefits were reduced; only expected benefits were reduced, which

BankBoston could, under the law, modify or eliminate.

The ERISA anti-cutback provision protects against the

erosion of "accrued benefits." Id. That term, in the defined

benefit context, means "the individual's accrued benefit determined

under the plan." Id. § 1002(23)(A). That amount is "equal to the

employee's accumulated contributions." Id. § 1054(c)(2)(B).

The reduction of pension benefits of which Campbell

complains was merely the elimination of future expected accruals of

benefit. The December 31, 1996 amendment to the plan protected all

of the pension benefit based on Campbell's work for the company up

to that point; it merely ceased accruals under the old plan based

on employment from that point forward. This was an elimination of

an expected, not accrued, benefit. There was no ERISA violation.

3. ERISA Age Discrimination: 29 U.S.C. §

1054(b)(1)(H)(i)

Campbell next makes to us a more sophisticated charge

against BankBoston's cash balance plan: that BankBoston's cash

balance plan violates the anti-discrimination provision of ERISA.

This charge is a serious one, and its answer depends on an

interpretation of the complex ERISA statutory scheme. Because

Campbell did not raise this argument before the district court, he

has waived it. This anti-discrimination challenge to cash balance

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plans will doubtless be raised again before this or another court,

and so we briefly describe the controversy.

ERISA has its own anti-age discrimination provision, 29

U.S.C. § 1054(b)(1)(H)(i), which states that a defined benefit plan

does not meet the requirements of ERISA if "an employee's benefit

accrual is ceased, or the rate of any employee's benefit accrual is

reduced, because of the attainment of any age." See also I.R.C. §

411(b)(1)(H)(i) (containing an identical provision).7 Campbell's

challenge to BankBoston's cash balance plan, based on the work of

Professor Edward Zelinsky, is that cash balance plans violate this

provision because of the manner in which accrued benefits are

calculated.

For defined benefit plans, the term "accrued benefit"

means "the individual's accrued benefit . . . expressed in the

form of an annual benefit commencing at normal retirement age." 29

U.S.C. § 1002(23)(A) (emphasis added). This measure is quite

sensible as applied to traditional defined benefit plans, which

provide an annual benefit upon retirement.

Cash balance plans such as BankBoston's are instead

defined by a lump sum account balance, instead of the annual

7
There is also a similar provision in the ADEA. See 29
U.S.C. § 623(i)(1)(A) (establishing that defined benefit plans may
not require or permit "the cessation of an employee's benefit
accrual, or the reduction of the rate of an employee's benefit
accrual, because of age").

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benefit to be paid upon retirement. In this respect they appear

very much like defined contribution plans. If BankBoston's plan

was in fact a defined contribution plan, benefit accrual would be

measured by the balance in the individual's account. See id.

§ 1002(23)(B). Were that the case, there would be no question that

BankBoston's plan does not violate the age discrimination provision

of ERISA, because the plan donates a percentage of salary to the

account; age is never calculated into the amount contributed by the

employer.

The problem arises because cash balance plans are defined

benefit accounts; thus, the argument goes, benefit accrual must be

measured in terms of an annuity providing an annual benefit. In

order to translate a cash balance lump sum into an annuity

beginning at normal retirement age,8 the age of the individual is

very much relevant, because of the time value of money. An amount

of money donated to a younger employee will have a longer time to

accrue interest, and result in a larger annuity upon retirement,

than the same amount donated to an employee closer to retirement

age. Campbell argues that this effect means that under

BankBoston's cash balance plan, using a metric which measures an

annuity at retirement, older workers accrue less pension benefits

solely due to age. See Zelinsky, supra, at 719-22.

8
This calculation is a simple accounting function, though it
does depend both on the current interest rates and the mortality
tables.

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 This conclusion is by no means uncontroverted. First,

the ERISA age discrimination provision may not even apply to

workers younger than the age of normal retirement. The Internal

Revenue Code contains an identical provision, I.R.C. §

411(b)(1)(H); the heading to that provision reads: "Continued

accrual beyond normal retirement age." The legislative history

surrounding the enactment of the provision buttresses this

argument. See Eaton v. Onan Corp., 117 F. Supp. 2d 812, 827 (S.D.

Ind. 2000). Second, even if the age discrimination applies to

employers younger than normal retirement age, such as Campbell,

critics of the age discrimination argument have contended that

there are various methods for determining benefit accrual rates

under ERISA, and it is by no means clear that the annuity method is

the only permitted method in this context. See R.C. Shea, M.J.

Francese & R.S. Newman, Age Discrimination in Cash Balance Plans:

Another View, 19 Va. Tax Rev. 763, 767 (2000).

The IRS has also reviewed the challenge to cash balance

plans under the age discrimination provision of ERISA. On December

11, 2002, the IRS issued proposed regulations which attempt to

address, among other issues, the proper definition of the rate of

benefit accrual for cash balance plans for purposes of IRS approval

of a plan. See Reductions of Accruals and Allocations because of

the Attainment of any Age: Application of Nondiscrimination Cross-

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Testing Rules to Cash Balance Plans, 67 Fed. Reg. 76,123 (proposed

Dec. 11, 2002).

We need not resolve this complicated issue, for Campbell

did not raise it before the district court. While his amended

complaint generally alleges that the retirement plan violates ERISA

provisions, it did not allege this theory in fact or in law. His

count for "Discrimination" references ADEA, not ERISA. When

defendants moved for summary judgment, his opposition argued only

the forfeiture argument to the district court, and not the argument

he now wishes to pursue. If the issue had been fairly raised in

the district court, other evidence and argument would have been

introduced into the record. "[I]ssues first asserted on appeal

must be deemed waived." Utica Mut. Ins. Co. v. Weathermark Invs.,

Inc., 292 F.3d 77, 81 (1st Cir. 2002); see Sandstrom v. ChemLawn

Corp., 904 F.2d 83, 87 (1st Cir. 1990). We do not consider

Campbell's challenge to BankBoston's cash balance plan based on the

ERISA age discrimination provision.

4. ADEA

Finally, Campbell has alleged a violation of the ADEA.

He argues that BankBoston knew that the decrease in pension

benefits as a result of the conversion to the cash balance plan

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would be particularly adverse to older workers.9 This claim is

procedurally foreclosed.

Campbell's claim is barred because the charge was filed

beyond the limitations period. Campbell did not file a complaint

with the EEOC until December 13, 1999. EEOC charges must be filed

within 180 days of the alleged unlawful practice; if there is an

applicable state age discrimination law and agency, as there is

here, see Mass. Gen. Laws ch. 151B (2002), the time period is

extended to 300 days. 29 U.S.C. § 626(d). Campbell was aware of

the amendment to BankBoston's pension plan and the resulting effect

on his benefits no later than October 14, 1998, when he wrote a

letter to the Retirement Committee. In that letter, Campbell

referred to the description of his benefits earlier provided by

BankBoston and challenged the benefits calculation. The filing of

the EEOC charge in December 1999 was well beyond the 300-day

limitations period.

Campbell attempts to circumvent this limitations period

by arguing that the statute of limitations requirement is met if at

least one act in an ongoing pattern of discrimination falls within

the 300-day period. For this proposition, Campbell cites to AMTRAK

v. Morgan, 536 U.S. 101 (2000), which held that for Title VII

9
The parties disagree as to whether Campbell is asserting a
disparate impact or a discriminatory treatment claim. This circuit
doubts that ADEA may be used to raise an impact claim. Mullin v.
Raytheon Co., 164 F.3d 696, 703-04 (1st Cir. 1999). Our resolution
on other grounds means we do not need to sort through this issue.

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hostile environment claims, if any act that is part of the hostile

work environment falls within the limitations period, the employee

may include all other related acts in the charge. Id. at 125.

Campbell's reliance on this case as support for his position is

misplaced. The Supreme Court specifically found that hostile work

environment claims were fundamentally different, id. at 123, and

reiterated the rule that for other discrimination claims, "discrete

discriminatory acts are not actionable if time barred, even when

they are related to acts alleged in timely filed charges." Id. at

122. Moreover, acts must be "independently discriminatory." Id.

The only act about which Campbell complains which is

within the time limitations period is the August 11, 1999 final

denial of his request to correct his benefits. This act was not

independently discriminatory. The alleged discrimination occurred

when the decision concerning Campbell's pension benefits was made

and communicated to him in October 1998. The limitations period

began then, not when the grievance procedure to correct that

decision was terminated. See Del. State Coll. v. Ricks, 449 U.S.

250, 261 (1980). By December 1999, that limitations period had run

its course.

For the reasons stated above, we affirm the district

court's grant of summary judgment to defendants.

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