William J. Broedel and Joan C. Broedel - Page 10




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          is, in lieu of what was the settlement amount paid?”  Bagley v.             
          Commissioner, 105 T.C. 396, 406 (1995), affd. 121 F.3d 393 (8th             
          Cir. 1997).                                                                 
               The settlement agreement allocated payments for backpay and            
          attendant benefits and for an amount equal to one and one-half              
          times Mr. Broedel’s annual salary.  The form and taxability of              
          the amount allocated to the backpay and attendant benefits are              
          not at issue.  Because the remaining portion of the settlement              
          agreement, $58,372.50, is not allocated among petitioners’                  
          various claims, we will examine the nature of each claim in turn.           
               Initially, we address petitioners’ claim that Mr. Broedel              
          suffered injury to his reputation because of harassment by SUNY.            
          The consent award and the complaint do not refer to any claim by            
          Mr. Broedel alleging harm to his reputation as the result of                
          harassment by SUNY, nor is there an allocation to such a claim in           
          the consent award.  Petitioners have failed to present any                  
          evidence establishing that SUNY paid any portion of the                     
          settlement amount to compensate Mr. Broedel for injury to his               
          reputation.                                                                 
               Mr. Broedel’s complaint for relief was based on both State             
          and Federal law.  The complaint raised allegations under the Age            
          Discrimination in Employment Act of 1967 (ADEA), Pub. L. 90-202,            
          sec. 2, 81 Stat. 602.  Recovery under the ADEA is not based upon            
          tort or tort type rights.  See Commissioner v. Schleier, supra at           






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