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GARRATT v. WALKER

No. 96-1470.

164 F.3d 1249 (1998)

Lisbeth L. GARRATT, Plaintiff-Appellant, v. John S. WALKER, doing business as John S. Walker, DMD, Defendant-Appellee.

United States Court of Appeals, Tenth Circuit.

December 9, 1998.

Attorney(s) appearing for the Case

Robert L. Liebross (Barry D. Roseman with him on the briefs), Denver, Colorado for Plaintiff-Appellant.

Howard Bittman, Boulder, Colorado, for Defendant-Appellee.

Before SEYMOUR, Chief Judge, PORFILIO, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO and MURPHY, Circuit Judges.

ON REHEARING EN BANC

PAUL KELLY, Jr., Circuit Judge.

We granted rehearing en banc and address when an employer in a Simplified Employee Pension (SEP) plan can condition another employee's participation in the plan upon a reduction in salary without violating the anti-discrimination provision (§ 510) of ERISA, 29 U.S.C. § 1140?1 The panel opinion affirmed summary judgment in favor of Defendant-Appellee Dr. Walker (employer...

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