DOMA Fallout Leads To Litigation On Same-Sex Marriage Benefits

Milford resident Gerald Passaro II was one of the plaintiffs in a federal lawsuit in Connecticut that challenged the federal Defense of Marriage Act. In 2012, U.S. District Judge Vanessa Bryant struck down a portion of the law that barred same-sex couples from receiving federal benefits, and the case was combine with a New York challenge that ultimately resulted in the U.S. Supreme Court ruling a key provision of DOMA unconstitutional.

Now Passaro is back in federal court in Connecticut. He claims that even though DOMA is no longer on the books, his now-deceased partner’s former employer won’t provide him with spousal survivor benefits. Specifically, the lawsuit says that Bayer AG is violating provisions of the Employee Retirement Income Security Act.

The lawsuit was filed by Boston-based Gay & Lesbian Advocates & Defenders. GLAD says that Passaro—referred to as Jerry in legal documents—should receive benefits from the Pittsburgh-based Bayer Corp. because his late husband, Thomas Buckholz, worked as a chemist for the company in Connecticut more than 20 years before his death in 2009.

The lawsuit claims that Bayer’s pension plan is “legally obligated to extend—and has no discretion to deny—a [qualified preretirement survivor annuity] to Jerry because Jerry is a surviving spouse within the meaning of governing federal law and, as a surviving spouse, is entitled to a QPSA.”

After 13 years together, Buckholz and Passaro were married in front of a Christmas tree in their home in November 2008, shortly after Connecticut began allowing same-sex marriages. Buckholz was already seriously ill with lymphoma, and died two months later, days before his 48th birthday. Passaro, a former hair stylist, is disabled and receives a Social Security check for less than $1,000 a month, according to the GLAD website.

According to GLAD, before Buckholz died, he believed he had received assurances from Bayer that his partner would be the beneficiary of his pension. But after Buckholz died, Passaro requested the benefits—which would total a little more than $500 a month, according to GLAD—and was turned down by Bayer, its benefits provider Vanguard and Bayer’s ERISA Review Committee.

According to the lawsuit, Bayer cited DOMA in its refusal.

In 2010, Passaro became one of 13 plaintiffs in the Connecticut DOMA challenge, Pedersen v. Office of Personnel Management. In June 2013, the Pedersen victory for the plaintiffs was confirmed when the U.S. Supreme Court found DOMA unconstitutional in United States v. Windsor.

According to the GLAD lawsuit, after the Windsor decision, Passaro again asked Bayer for the spousal pension benefits. The pharmaceutical company again said no.

A Bayer spokesman said the company was unable to provide an immediate comment.

“Despite the fact that DOMA has been found unconstitutional, Bayer continues to deny benefits to [Passaro] even though its pension plan provides benefits to all surviving spouses and even though federal law mandates pension benefits for surviving spouses under plans like Bayer’s,” said Gary Buseck, who is GLAD’s interim executive director. “Bayer has turned a deaf ear to its legal and moral obligation to the widower of a dedicated employee, who is in need of this basic support that his husband earned.”

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