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Petitioners' basis for asserting that there are substantial
issues of fact that require denial of respondent's motion is that
they would offer the following evidence:
(1) Mr. Sodoma was over 40 years of age at the time he
executed the release.
(2) The only consideration for the payment received from
IBM was the execution of the release.
(3) IBM did not treat the payment as compensation for
retirement plan purposes.
(4) IBM was engaged in a systematic violation of the Age
Discrimination in Employment Act of 1967, Pub. L. 90-202, 81
Stat. 602 (current version at 29 U.S.C. secs. 621-634 (1988))
(ADEA), and age discrimination was its primary concern in
requiring Mr. Sodoma to sign the release agreement.5
(5) Mr. Sodoma suffered personal injuries as a result of
the discrimination practices of IBM.
The only specific factual assertion is that Mr. Sodoma is
within the age group, i.e., over 40, entitled to claim the
benefit of the ADEA. However, it has been established that a
mere allegation of membership in a protected class is
insufficient to sustain a claim for exclusion under section
104(a). See Starrels v. Commissioner, 35 T.C. at 648; Galligan
5 Petitioners make no claim that Mr. Sodoma did not sign the
release voluntarily as the document itself recites.
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Last modified: May 25, 2011