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days of unsuccessfully seeking another position within IBM,
petitioner signed up for the ITO II program and executed the
release and the Pre-Retirement Leave of Absence Agreement. The
foregoing sequence of events supports our conclusion that the ITO
payment was severance pay to petitioner.
Additionally, we find support in the ITO II program
documents5 for our conclusion that the ITO payment was severance
pay. Paragraph 6 of the release provides the terms for repaying
the ITO payment in case of rehire by IBM and states: "The amount
of repayment will be based on the number of weeks off the IBM
payroll compared with the number of weeks' salary used to
calculate your payment." (Emphasis added.) The fact that the
number of weeks of petitioner's salary was used in calculating
petitioner's ITO payment makes the ITO payment appear to be
severance pay and not damages for personal injuries. Moreover,
the Pre-Retirement Leave of Absence Agreement provides: "Your
leave will begin 08/01/92 and will end 12/31/00. Based on your
committed plan to retire immediately following your leave, your
effective date of retirement will be 12/31/00. Once your leave
begins, the committed retirement date may not be changed to a
5 The ITO II program documents in the instant case include an
apparently complete set of documents related to the ITO II
program (with an unsigned release and unsigned Pre-Retirement
Leave of Absence Agreement) that was submitted by petitioners
with their trial memorandum, and the executed release and
executed Pre-Retirement Leave of Absence Agreement that were
submitted by respondent in the affidavit supporting the instant
motion.
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Last modified: May 25, 2011