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that this release covers, but is not limited to, claims
arising from the Age Discrimination in Employment Act
of 1967, as amended, Title VII of the Civil Rights Act
of 1964, as amended, and any other federal or state law
dealing with discrimination in employment on the basis
of sex, race, national origin, religion, disability, or
age. You also agree that this release includes claims
based on theories of contract or tort, whether based on
common law or otherwise. This release does not include
your vested rights, if any, in the IBM Retirement Plan,
which survive unaffected by this release.
* * * * * * *
6. In the event of rehire by IBM or any of its
subsidiaries as a regular employee, you understand that
IBM reserves the right to require repayment of a
prorated portion of the ITO-II Program payment. 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.
At the time of signing the release petitioner had no legal
claims pending against IBM for unlawful employment practices.3
Petitioner, however, thought that he had a claim against IBM
pursuant to the ADA for compensatory and punitive damages, as
well as damages for emotional distress, as a result of its
alleged discriminatory treatment of him.
In exchange for signing the release and participating in the
ITO II Program, petitioner received a $94,174 lump-sum payment
(the payment or ITO payment). The payment amount for each
3 Although petitioner did not file any legal claims against
IBM prior to signing the release, he did make verbal complaints
to Andersen, his supervisor, at a meeting which took place on May
20, 1992.
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Last modified: May 25, 2011