RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0099P (6th Cir.) File Name: 00a0099p.06
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________
; DANIEL C. GREER, Plaintiff-Appellee, No. 98-6593 v. > UNITED STATES OF AMERICA, Defendant-Appellant. 1 Appeal from the United States District Court for the Eastern District of Kentucky at Ashland. No. 96-00117—Henry R. Wilhoit, Jr., Chief District Judge. Argued: August 6, 1999 Decided and Filed: March 22, 2000 Before: JONES, SILER, and GILMAN, Circuit Judges. _________________ COUNSEL ARGUED: Kenneth W. Rosenberg, U.S. DEPARTMENT OF JUSTICE, APPELLATE SECTION TAX DIVISION, Washington, D.C., for Appellant. Patrick F. Nash, Lexington, Kentucky, for Appellee. ON BRIEF: Kenneth W. Rosenberg, U.S. DEPARTMENT OF JUSTICE, APPELLATE SECTION TAX DIVISION, Washington, D.C., for Appellant. Patrick F. Nash, Lexington, Kentucky, for Appellee.
1 2 Greer v. United States No. 98-6593
_________________ OPINION _________________ NATHANIEL R. JONES, Circuit Judge. The United States appeals the district court’s grant of summary judgment in favor of plaintiff-appellee Daniel C. Greer (“Greer”) in his suit to recover monies that were withheld from him for tax purposes when he was terminated by his employer. For the reasons that follow, we REVERSE and REMAND for proceedings consistent with this opinion. I. Greer worked for Ashland Oil, Inc. (“AOI”) from 1969 until his termination in July 1993. During his years of employment with AOI, Greer held a variety of positions, including executive assistant to the executive vice president and executive assistant to the president. In 1988, he served as AOI’s environmental compliance director. Although Greer regularly received positive performance reviews during his twenty-four years at AOI, he was fired in July 1993. Greer and AOI dispute the company’s motivations for his firing. According to Greer, the circumstances of his firing were highly suspicious. As environmental compliance director, Greer was required to perform environmental compliance audits of AOI’s petroleum operations. Greer held this position for two- and one-half years, and he visited and audited approximately 120 sites. Greer claims he uncovered and documented violations of environmental regulations at AOI refineries. According to Greer, AOI executives feared that his reports might be released to enforcement authorities at a time when AOI was already under their close scrutiny. In 1991, AOI removed Greer from the environmental compliance department and appointed him director of cost management. Despite the fact that he had no computer programming experience, Greer was assigned the task of creating a complex computer program. After Greer No. 98-6593 Greer v. United States 3
completed the project, he was given little to do for several months. Eventually, AOI’s human resources department informed Greer that his position was being eliminated. Even though Greer claims to have “begged to do anything else in the company,”1 he was dismissed and told that he simply “didn’t fit in.” Greer appealed his dismissal all the way to AOI’s chairman of the board. Given the events leading to his abrupt termination, Greer believes AOI terminated him because he had too thoroughly identified and documented AOI violations of environmental regulations. When Greer learned that his termination was final, he told AOI representatives, “I will seek whatever remedies are available to me to protect myself in whatever way I can.” However, Greer never explicitly threatened AOI with a wrongful termination lawsuit, nor did he sue AOI. In fact, Greer admitted in his deposition that he “didn’t have the foggiest idea” what his legal rights were at that time. Shortly after notifying Greer of his impending termination, AOI proposed a compensation package to Greer. After consulting with his attorney, Greer signed the proposed agreement on his last day at AOI. AOI’s normal severance policy was to grant one week’s salary for each year of service. In Greer’s case, a normal severance package would have totaled $51,000. However, AOI and Greer agreed that AOI would pay Greer $331,968 in exchange for Greer’s surrendering all claims against AOI. Specifically, by accepting the offered compensation, Greer signed a document titled “Severance Agreement and Release” (“the agreement”) which waived: any and all claims, rights, and causes of action [against AOI] of all nature, which may have arisen, or which may arise, known or unknown, out of any events or actions occurring before the date of his execution of this release, including, but not limited to, his employment, the
1 AOI officials claim that Greer never requested a transfer to another position after his position was eliminated. 4 Greer v. United States No. 98-6593 No. 98-6593 Greer v. United States 21
termination of his employment, or any prior agreements that punitive damages are not “on account” of personal between the parties, and expressly including, without injuries or sickness); Burke, 504 U.S. at 238-39 (holding that limitation, as claims to be released, any claims of remedies such as backpay and frontpay are not excludible). wrongful discharge, or any claims related to acts or omissions of the Company involving him, or of For this reason, although we agree that the payment was discrimination under any federal, state or local law, rule made in lieu of Greer’s tort claim, we believe the district or regulation. Examples of such federal, state or local court acted too hastily when it granted summary judgment in law, rule or regulation regarding discrimination include, Greer’s favor. Because a crucial issue remains in dispute, a but are not limited to, any claims arising under Title VII trial may be necessary. Greer faces the burden of showing the of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et court either that AOI made the entire “bonus” payment on seq., or any claims arising under the Age Discrimination account of his personal injuries, or presenting evidence which in Employment Act, 29 U.S.C. § 621 et seq. This would allow the court to determine that a distinct portion of release is for any relief, no matter how denominated, the payment was made on account of personal injuries. including but not limited to wages, back pay, front pay, compensatory damages, or punitive damages. IV.
J.A. at 116 (emphasis added). In his deposition, Randy We find that the district court correctly concluded that the Lohoff (“Lohoff”), AOI’s vice president of human resources, $280,968 payment above and beyond AOI’s standard $51,000 testified that it is AOI policy to include this general waiver severance payment was in lieu of Greer’s tort claim. At the whenever it grants an employee an increase in the normal same time, a genuine issue remains as to whether that severance pay. payment was made “on account” of personal injuries. For this reason, we believe the district court must determine if the AOI’s standard practice is to withhold taxes from every payment was indeed “on account” of Greer’s claimed settlement amount it pays. The company applied that policy personal injuries, making the amount paid excludible under to Greer’s case and withheld $108,873 from the compensation the Code. Pursuant to III.D.1.c of this opinion, the district package for federal income tax purposes. On June 25, 1996, court may apportion between the excludible and non- Greer filed for a refund in the district court pursuant to 26 excludible amounts of the payment if the evidence allows for U.S.C. § 104(a)(2), seeking to recover the amount of his such a fine-tuned determination. We therefore REVERSE compensation package that was withheld for taxes. the district court’s holding, and REMAND for proceedings consistent with this opinion. After depositions were taken of Greer and Lohoff, both the Government and Greer filed motions for summary judgment. Greer argued that the funds he received from AOI constituted the settlement of his potential wrongful discharge claim. He asserted that the circumstances of his termination diminished his personal and professional reputation, and inflicted stress, humiliation, mental anguish, self doubt and emotional pain. Because they were part of the settlement of this potential claim, Greer argued, the funds he received under the agreement could not be taxed. The Government countered 20 Greer v. United States No. 98-6593 No. 98-6593 Greer v. United States 5
d. that the extra compensation from the agreement covered both the release of all potential claims as well as consideration of In sum, we find the following factual showings made by his past service. Because the funds paid to Greer comprised Greer to be undisputed: Greer had a bona fide tort-based non-excludible compensation, the full amount could be taxed. claim against AOI for wrongful discharge; the claim existed at the time the agreement was reached; and the claim On September 22, 1998, the district court filed an encompassed personal injury. Other undisputed unpublished opinion granting Greer’s motion for summary facts—primarily the exorbitant amount paid to Greer relative judgment and denying the Government’s motion. The district to a standard AOI severance package and the evidentiary court determined that the compensation package constituted showing that AOI officials were aware of Greer’s potential a nontaxable personal injury tort settlement. Specifically, the claim—establish that the agreement constituted a settlement district court concluded that $280,968 was nontaxable and in lieu of prosecution of that claim. that approximately $51,000 of the agreement constituted normal severance pay that could be taxed as income. 2. The Government filed this timely appeal. Greer does not Despite the strength of his evidence that the payment was contest the finding that $51,000 was taxable income. made in lieu of his tort claim, Greer has failed to surpass the second factual hurdle to gain exclusion under II. § 104(a)(2)—that the payment was “on account of personal injuries or sickness.” Schleier, 515 U.S. at 330. As stated This court will review a grant of summary judgment de supra, there is no doubt that Greer’s tort claim may have novo. See Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 encompassed personal injuries. “Personal injuries” include F.3d 174, 178 (6th Cir. 1996). Summary judgment is nonphysical injuries, “such as those affecting emotions, appropriate where there exists no genuine issue of material reputation, or character,” Burke, 504 U.S. at 235 n.6, and can fact and the moving party is entitled to summary judgment as include “intangible as well as tangible harms.” Schleier, 515 a matter of law. See id. (citing Fed. R. Civ. P. 56(c)). U.S. at 329 & n.4. Emotional distress, mental pain and Although both parties below stipulated that there were no suffering, and injury to personal and professional reputation disputes over any material facts in the case, and each also constitute personal injuries for exclusion purposes. See submitted motions for summary judgment, that fact “does not supra. These are precisely the types of injury that Greer now require [us] to rule that no fact issue exists.” Cherokee claims his wrongful discharge rendered: damage to his Insurance Co. v. E.W. Blanch Co., 66 F.3d 117, 123 n.4 (6th personal and professional reputation, as well as distress, Cir. 1995) (quoting Begnaud v. White, 170 F.2d 323, 327 (6th humiliation, and mental anguish. However, Greer has not Cir. 1948)). Indeed, “summary judgment in favor of either presented concrete evidence demonstrating the precise causal party is not proper if disputes remain as to material facts.” connection between such personal injuries and AOI’s Taft Broadcasting Co. v. United States, 929 F.2d 240, 248 payment to him, a showing Schleier requires before a court (6th Cir. 1991). At the same time, “cross motions for can render a settlement payment excludible. For example, summary judgment do authorize the court to assume that there AOI may have intended portions of the payment to have been is no evidence which needs to be considered other than that on account of lost wages, lost future earnings, or punitive which has been filed by the parties.” Harrison Western damages, none of which are excludible under § 104(a)(2). Corp. v. Gulf Oil Co., 662 F.2d 690, 692 (10th Cir. 1981). See O’Gilvie v. United States, 519 U.S. 79, 83 (1996) (stating 6 Greer v. United States No. 98-6593 No. 98-6593 Greer v. United States 19
III. AOI was aware of the potential for such a claim. This clear evidence distinguishes this case from Pipitone and Taggi and Under § 61(a) of the Internal Revenue Code taxpayers are renders the lower court’s apportionment of the payment liable for all gross income, meaning “all income from proper. whatever source derived . . . .” 26 U.S.C. § 61(a) (1994). As the Supreme Court has oft repeated, this section is to be Finally, to the extent that Taggi and Pipitone stand for the construed liberally “in recognition of the intention of proposition that courts can never engage in apportionment—a Congress to tax all gains except those specifically exempted.” stance the Government takes—we disagree with that Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 430 conclusion. Such a hard-and-fast rule not only stands on (1955). Thus, there is no dispute that the compensation paid weak legal ground,6 but would defy the established to Greer under the agreement falls well within the broad framework of scrutinizing the totality of the circumstances to sweep of § 61(a) unless it is specifically excluded elsewhere determine the intent of the payor whenever a written in the Code. See Commissioner v. Schleier, 515 U.S. 323, severence/settlement agreement is not clear as to its purpose. 328 (1995) (concluding that the taxpayer’s settlement If in undertaking this inquiry, a court finds the evidence to be agreement “constitutes gross income unless it is expressly sufficiently clear that it can determine that a specific amount excepted by another provision”); United States v. Burke, 504 was paid for settlement purposes under Schleier, we see no U.S. 229, 233 (1992) (“There is no dispute that the settlement reason why a court should not set that amount aside as awards in this case would constitute gross income within the excludible. Indeed, we believe this is what the relevant reach of § 61(a).”). Exclusions to § 61(a) are narrowly precedent requires. Of course, outside of an explicit construed, see Schleier, 515 U.S. at 328; Commissioner v. apportionment, evidence will rarely be clear enough to allow Jacobson, 336 U.S. 28, 49 (1949), and the taxpayer bears the for such a determination. Nonetheless, we find this to be that burden of proving the amount he is entitled to recover. See rare case where it is. United States v. Janis, 428 U.S. 433, 440 (1976). Greer claims that most of the compensation at issue should 6 be excluded because it falls within § 104(a)(2) of the Code, Taggi cited a 1985 Minnesota district court decision in support of which excludes from gross income any “damages received its statement that the court “was not in a position to apportion the payment among the various possible claims.” 35 F.3d at 96 (quoting (whether by suit or agreement and whether as lump sums or Villaume v. United States, 616 F. Supp. 185, 190 (D. Minn, 1985)), and as periodic payments) on account of personal injuries or also cited several Tax Court cases. See, e.g., Whitehead v. Commissioner, sickness.” 26 U.S.C. § 104(a)(2). The Supreme Court in 49 T.C.M. (P.H.) ¶ 80,508 (1980). These cases all look back to a 1979 Schleier set forth a two-prong test that must be met for Tax Court decision, Gunderson v. Commissioner., 48 T.C.M. (P.H.) compensation to fall within § 104(a): exclusion is warranted ¶ 79,099 (1979). But Gunderson never enunciated a rule against non- apportionment. Instead, the Gunderson Court only held that based on the only when an amount is received (1) through the prosecution facts of the case before it, there was no evidence that the payor intended of an action or the settlement entered into in lieu of the lump sum payment to the employee to be anything but to settle prosecution of an action based upon tort or tort-type rights; contractually based rights. See Gunderson, 1979 T.C.M. (P.H.), at 79- and (2) the amount is paid on account of personal injuries or 435 (“[T]here is [no] factual basis in the record upon which we could sickness. See 515 U.S. at 337; Gerbec v. United States, 164 make an allocation of the settlement to any specific claims that petitioner might have asserted against [his employer].”). Thus, it appears that later cases such as Whitehead converted Gunderson’s fact-based conclusion into an ironclad rule of law, and cases like Taggi propounded Whitehead’s mistake. Moreover, none of these “non-apportionment” decisions articulated any reason for such a rigid non-apportionment rule. 18 Greer v. United States No. 98-6593 No. 98-6593 Greer v. United States 7
I guess I’d have to refer to the agreement itself and it F.3d 1015, 1025 (6th Cir. 1999) (citing Schleier).2 This two- would -- it’s provided because of the promises made and part test tightly packs a number of discrete elements. Due to accepted between Mr. Greer and Ashland as stated in the the complexity of this case, we find it useful to disaggregate severance agreement and release as to why the payments the test into its disparate elements. To satisfy Schleier, the were made . . . . I think the document speaks for itself. taxpayer must show that 1) there was an underlying claim sounding in tort; (2) the claim existed at the time of the J.A. at 105. settlement; (3) the claim encompassed personal injuries; and (4) the agreement was executed “in lieu” of the prosecution of In short, although Lohoff’s testimony creates an issue of the tort claim and “on account of” the personal injury, fact as to whether he personally knew of the full set of rendering it a settlement rather than a mere severance circumstances regarding Greer’s termination, his testimony agreement. By requiring each of these elements, courts can does nothing to counter Greer’s showing that other AOI effectively distinguish between severance and settlement officials—and most critically, Thomas—were aware of the agreements and prevent parties from “creating contrived background circumstances leading to Greer’s ultimate ‘settlement agreements’ to avoid taxation of [severance] termination. Because cross motions for summary judgment proceeds.” Lubart v. Commissioner, 154 F.3d 539, 542 (5th allow a reviewing court to assume that there is no additional Cir. 1998). evidence to be considered, we find that there is no issue of fact regarding Greer’s showing that AOI was aware of his tort The Government argues that the agreement between Greer claim. and AOI lacks several of these elements and thus constitutes a fully taxable severance package under § 61(a). We disagree, c. concluding that the agreement and the unique circumstances leading to its inception satisfy most of these elements; indeed, Finally, we believe the facts of this case are sufficiently we find that the agreement meets the first prong of the unique and the evidence sufficiently clear to allow the district Schleier test—that it was made in lieu of a viable, existent tort court to apportion the payment into the components that were claim. At the same time, we believe a genuine issue remains “in lieu” of a tort claim and those that were clearly not. as to what amount of the payment, if any, was “on account of” Unlike Taggi and Pipitone, where the evidence was not personal injuries. adequate to enable those courts to apportion among various claims, see Pipitone, 180 F.3d at 165; Taggi, 35 F.3d at 96, A. the undisputed evidence in this case allows for such a determination. First, it is clear that AOI’s standard The compensation AOI paid to Greer satisfies the first calculation would have provided Greer with a severance element we listed supra: that the alleged claim be based upon payment of $51,000, an amount that is not excludible. tort or tort-type rights. See Schleier, 515 U.S. at 337. To Second, Greer has adduced that there were no other viable make this determination, we must “focus[] on the origin and claims at the time of the agreement. Under cross- examination, Lohoff acknowledged that AOI officials perceived Greer to have no viable claims against AOI for age 2 discrimination or Title VII discrimination, which were the This test emanated in part from treasury regulations that had defined only other specific claims waived by the agreement. The the term “damages received” as “an amount received . . . through prosecution of a legal suit or action based upon tort or tort type rights, or record thus leaves wrongful discharge as the only bona fide through a settlement agreement entered into in lieu of such prosecution.” claim at the time of the agreement, and, crucially, evinces that Treas. Reg. § 1.104-1(c). 8 Greer v. United States No. 98-6593 No. 98-6593 Greer v. United States 17
characteristics of the claims settled in determining whether that Lohoff concluded that he had not been aware of any such damages are excludible under § 104(a)(2).” Pipitone v. claims on the horizon. See J.A. at 99-101 (stating that he United States, 180 F.3d 859, 862 (7th Cir. 1999) (citing “didn’t recall him ever making that type of statement,” and Burke, 504 U.S. at 237). In particular, we look to state law to that he “didn’t recall [Greer] making any statements” that determine the nature of the claim. See Burnet v. Harmel, 287 AOI had violated environmental regulations “to me”). U.S. 103, 110 (1932) (“[S]tate law creates legal interests, but the federal statute determines when and how they shall be But as both Greer and Lohoff testified, Greer expressed his taxed.”). In this case, Greer alleges that his underlying claim displeasure directly with other, more senior AOI officials. was wrongful discharge, which is a clearly recognized tort First, Greer testified and Lohoff acknowledged that he had a claim under Kentucky law. See Firestone Textile Co. Div. v. closed-door meeting with the chairman of AOI, John Hall, Meadows, 666 S.W.2d 730, 733 (Ky. 1983). The about his termination. Second, Greer discussed these matters Government does not dispute that wrongful discharge is a tort on numerous occasions with Richard Thomas, who during the that could give rise to § 104(a)(2) exclusion. period in question was vice president of human resources, vice president of the law department, general counsel for the B. petroleum company, and responsible for all environmental activities in the company. Thomas was not only the person to Second, we conclude that the wrongful discharge claim whom Greer had directly reported when he was responsible existed at the time Greer and AOI struck the agreement. As for environmental compliance, but he “reviewed” with other courts have stated, for an agreement to be rendered a Thomas the controversial findings he had made in that settlement, there must be an actual dispute and existing claim position. Thomas was also the official who personally at the time of that agreement. See Pipitone, 180 F.3d at 862; informed Greer of his termination. According to Greer, Lubart,154 F.3d at 542. Claims for potential future personal Thomas—who was Lohoff’s boss at the time—was also a injuries are insufficient. See Pipitone, 180 F.3d at 862; point-man in the negotiations that culminated in the Lubart, 154 F.3d at 542 (“If section 104(a)(2) were construed agreement, and Greer directly told Thomas that he would to encompass releases of potential unspecified future claims, “have to seek whatever remedies are available to me,” J.A. at . . . manufacturing section 104(a)(2) tax treatment would be 37. Overall, therefore, given his broader role in the company simple.”). The dispute must be bona fide, although it need and long-time supervision of and interaction with Greer, not be valid or sustainable. See Pipitone, 180 F.3d at 862. Thomas was the key AOI official who, according to Greer’s testimony, knew of the environmental violations and also was We find that a bona fide claim for wrongful discharge directly involved in hammering out the settlement agreement. under Kentucky law existed at the time of the settlement. Yet nowhere in the record has the Government attempted to Kentucky law recognizes a cause of action for wrongful rebut this evidence regarding Thomas’s involvement and discharge “based on public policy.” Firestone Textile Co. knowledge. Thomas was not himself deposed, and the Div., 666 S.W.2d at 732. Such a public policy-based Government asked Lohoff nothing about Thomas’s or other wrongful discharge claim exists when the “alleged reason for officials’ perceptions of Greer’s potential claim. Only once the discharge of the employee was the failure or refusal to was Lohoff directly asked whether, “[a]s far as Ashland was violate a law in the course of employment,” or when the concerned,” the payment was of the nature of severance pay reason for the discharge “was the employee’s exercise of a or a settlement. J.A. at 105 (emphasis added). Rather than right conferred by well-established legislative enactment.” countering Greer’s account, his answer was nonresponsive: Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66, 69 (Ky. 16 Greer v. United States No. 98-6593 No. 98-6593 Greer v. United States 9
that AOI officials had good reason to know that a bona fide 1995) (internal quotation marks and citation omitted). wrongful discharge claim existed at the point of Greer’s Whether or not Greer could have prevailed on such a termination. Moreover, Lohoff, the Government’s only wrongful discharge claim in state court is irrelevant here. witness, largely bolstered Greer’s account of events. First, he Rather, we find that Greer’s account of the unique confirmed the basic career progression that Greer had circumstances of his firing—an account which, as we explain described. Second, Lohoff testified that he knew that Greer infra, the Government largely failed to dispute—was was not pleased with his dismissal, and that he was sufficient to state a bona fide claim for wrongful discharge at sufficiently disgruntled to appeal it through several levels of the time of his termination. management. His testimony, coupled with the agreement itself, also showed that the agreement took Greer’s individual The Government wrongfully asserts that a claim could not needs into account. Lohoff acknowledged, for instance, that have existed unless Greer actually filed that claim against AOI adjusted the agreement after Greer indicated he felt that AOI before the settlement. Circuit courts and the Tax Court Ashland may have “somehow wronged him” regarding certain have consistently rejected such a formalistic requirement. investment losses. J.A. at 100-01; J.A. at 118. See also J.A. See, e.g., Pipitone, 180 F.3d at 863 (“The fact that Pipitone at 109 (acknowledging that “there are provisions in it that . . . did not file a formal suit alleging these claims . . . is not are specific to Mr. Greer”). necessarily detrimental to his efforts to establish the existence of an underlying cause of action.”); Carey v. Commissioner, Most importantly, Lohoff’s testimony failed to rebut 74 T.C.M. (CCH) 705, 707 (1997) (stating that the claim Greer’s assertions that AOI had reason to know of his bona “need not have been previously asserted”); Phillips v. fide wrongful discharge claim. This is because most of Commissioner, 74 T.C.M. (CCH) 187, 190 (1997); Keel v. Lohoff’s statements simply described his own personal Commissioner, 73 T.C.M.(CCH) 3092, 3095 (1997); see also conversations with Greer and his impressions based on those Hamm v. Commissioner, 74 T.C.M. (CCH) 279, 282 (1997) conversations, which were of limited value to the Government (“[W]e have not found . . . any authority for the proposition in light of both Greer’s and Lohoff’s testimony that a number that the taxpayer must file a claim prior to the settlement of the crucial conversations in question did not involve agreement in order . . . to qualify for the exclusion.”). We Lohoff at all. In fact, relative to other persons with whom also find that the Government mischaracterizes the Second Greer interacted at AOI, Lohoff was in a poor position to Circuit’s holding in Taggi when it suggests that that opinion know of Greer’s potential claims against the company. required that a claim actually be made. See Gov’t Br. at 21- Lohoff himself acknowledged that Greer and he did not 23, 26 (reading Taggi to say that “if the taxpayer has not interact much at AOI. He further testified that he was aware asserted a claim, there is nothing to settle”). In fact, of other conversations Greer had had regarding his consistent with other courts, the Taggi Court considered termination, the details of which he was not knowledgeable. Taggi’s failure to make a formal claim as but one factor of a J.A. at 98-99 (acknowledging that Greer “appealed [his] multi-factor analysis. See 35 F.3d at 96. Directly after dismissal beyond [him]” and that he “was not privy to those observing that no claim had been filed, the court proceeded to conversations”); J.A. at 99 (stating that Greer “had consider the contents of the agreement, the amount paid to discussions with other people as well, including the Chairman Taggi, and the consequences of the signing of the agreement of the Board”). Nevertheless, the sole evidence the (namely, no subsequent litigation). See id. Had the court Government elicited comprised Lohoff’s narrow testimony used a strict filing requirement as the Government suggests, about what Greer had told him personally in their limited the latter analysis would have been wholly unnecessary. See interaction, and it was based only on this limited interaction generally Hamm, 74 T.C.M. (CCH) at 282 (reading Taggi 10 Greer v. United States No. 98-6593 No. 98-6593 Greer v. United States 15
similarly). Thus, we conclude that Greer’s failure to file suit First, this case stands out among most of this type, which against AOI does not defeat his argument that a bona fide often involve conclusory allegations of claims and employer’s claim existed. knowledge of claims—allegations that courts have properly found unavailing. See, e.g., Lubart, 154 F.3d at 542 (rejecting C. taxpayer for only alleging “potential unspecified future claims”); Kroposki, 74 T.C.M. (CCH) at 1435 (rejecting Third, we find that Greer’s tort claim potentially involved taxpayer’s allegations as after-the-fact, self-serving, and injuries that were personal. Courts and the IRS have long uncorroborated); Keel, 73 T.C.M. (CCH) at 3095 (opining recognized that §104(a)(2)’s reference to personal injuries that “we are furnished with no clue as to the nature of the “encompasses . . . nonphysical injuries to the individual, such claimed injuries”). In contrast, Greer presented substantial as those affecting emotions, reputation, or character . . . .” evidence suggesting not only that the tort claim based on Burke, 504 U.S. at 235 n.6. See also Schleier, 515 U.S. at personal injury existed, but that AOI had good reason to know 329 & n.4 (stating that § 104(a)(2) covers “intangible as well of the potential wrongful discharge claim. This evidence as tangible harms”). Specifically, personal injuries include went largely undisputed by the Government. Greer testified emotional distress, see Burke, 504 U.S. at 235 n.6, mental that he was transferred from his position as environmental pain and suffering, see Bent v. Commissioner, 835 F.2d 67, 70 compliance director shortly after issuing a series of (3d Cir. 1987), and injury to personal and professional “embarass[ing]” reports documenting various environmental reputation. See Threlkedl v. Commissioner, 848 F.2d 81, 83- regulation violations by AOI. J.A. at 62. The new position 84 (6th Cir. 1988); Church v. Commissioner, 80 T.C. 1104, was one for which he was ill-qualified technically, and after 1109 (1983). Here, Greer’s tort claim sufficiently some time, the post demanded little responsibility from Greer encompasses personal injury. Specifically, Greer claims for the $100,000-plus salary it paid him. Finally, on short injuries to his personal and professional reputation, as well as notice and with little explanation, AOI terminated him. distress, humiliation, and mental anguish. These claims of Moreover, unlike the numerous cases where there is no non-physical injury 3fall within the broad ambit of § 104(a)(2) evidence that taxpayers had “even talked to” the employer “personal” injuries. about a possible tort suit, Morabito v. Commissioner, 74 T.C.M. (CCH) 62, 64 (1997), Greer presented such evidence D. below. First, he appealed his dismissal all the way to the chairman of the company. Second, he specifically warned Fourth, and most critically, we must determine the AOI officials that he would “seek whatever remedies [w]ere motivation behind the agreement itself. In determining available to [him],” and indicated that he would “protect whether it was reached “in lieu” of the tort claim in existence [him]self in whatever way [he] could.” J.A. at 74, 79.5 at the time and “on account of” the personal injuries underlying that claim, 26 U.S.C. § 104(a)(2), we consider all Based on Greer’s testimony as to his employment history facts and circumstances. See Kroposki v. Commissioner, 74 and his dialogue with his AOI supervisors, the record shows T.C.M. (CCH) 1434, 1436 (1997). We first look to the
5 3 Because it is the intent of the payor that matters, the Government In 1996, Congress amended § 104(a)(2) to read “on account of errs when it argues that Greer did not know that he enjoyed a wrongful personal physical injuries or physical sickness.” (emphasis added). discharge claim in particular. Gov’t Br. at 23. The crucial question is Because the amendment took effect after AOI and Greer executed their whether AOI officials interpreted Greer’s threatening statements to mean agreement, it is not applicable to this case. that they potentially faced a wrongful discharge suit. 14 Greer v. United States No. 98-6593 No. 98-6593 Greer v. United States 11
Greer dwarfed the amount that would have resulted using agreement itself for indicia of its purpose. If the agreement AOI’s standard calculation of severance pay—one week of lacks express language of purpose, we look beyond the salary paid for each year of service. Based on Greer’s length agreement to other evidence that may shed light on “the intent of service—twenty-four years—and his salary at the of the payor as to the purpose in making the payment.” time—$112,000 per year—a standard severance payment Knuckles v. Commissioner, 349 F.2d 610, 613 (10th Cir. would have been approximately $51,000. AOI paid him just 1965); see also Lubart, 154 F.3d at 541 (“[T]he intent of the under $332,000—well over six times the standard amount. employer [] determine[s] the treatment of the payment.”). Although AOI acknowledged that it generally provides more This includes considering the amount paid, comparing the compensation than standard severance when a terminated circumstances and amount paid to other agreements the employee releases claims, neither AOI nor the Government company has entered into, considering the factual provided any explanation for the dramatic increase in Greer’s circumstances that led to the agreement, and weighing other “bonus.” Lohoff’s only explanation was that “[i]t ha[d] to do facts that may reveal the employer’s intent. See generally with some relationship to a salary.” J.A. at 103. Nor have we Pipitone, 180 F.3d at 864-65. We also heed the wisdom that found any other cases where the release “bonus” “[w]hen assessing the tax implications of a settlement approximated such a dramatic increase. In Taggi, for agreement, courts should neither engage in speculation nor example, AT&T supplemented the standard severance blind themselves to a settlement’s realities.” Bagley v. payment owed to Taggi, $29,700, with an additional $19,800 Commissioner, 121 F.3d 393, 395 (8th Cir. 1997). Applying for the general release. See 35 F.3d at 96. In Pipitone, the this fact-based analysis, we find that the unique circumstances employer provided Pipitone with twice the number of months of Greer’s termination rendered the agreement a settlement owed under the severance policy, which was the standard reached “in lieu” of the existent tort claim.4 Nonetheless, we bonus paid for such releases. See 180 F.3d at 865. Thus, find that there remains a dispute as to whether the agreement unlike other cases finding agreements to be for severance was “on account of” personal injuries. The case must be purposes only, we can not conclude that the payment made to remanded for this factual determination. Greer was either standard for AOI or based on a standard severance calculation. To the contrary, it was far in excess of 1. such a calculation, as well as far in excess of AOI’s standard severance agreement. First, we conclude that there is no genuine issue as to whether AOI provided the payment in lieu of Greer’s existent b. Second, courts look to other evidence to divine the payor’s intent in executing the agreement, including the 4 In doing so, we find that the material facts on this issue are not in circumstances leading to the termination, the filing of a claim dispute. The agreement itself is clear, and there is no dispute over the against the employer prior to the agreement, and other amount paid. Greer’s description of his job history at AOI was largely statements by and events involving the parties. While “the undisputed by Lohoff. Most importantly, the presence of a bona fide, if absence of any knowledge of the claim on the part of the not necessarily valid, tort claim is also not in dispute; neither is AOI employer-payor obviously has a negative impact in officials’ knowledge of the potential for such a claim. For reasons stated below, given Greer’s description of the events culminating in his determining the requisite intent of the payment,” Keel, 73 termination, Lohoff—the only witness the Government deposed—was T.C.M. (CCH) at 3095, we find the record to support Greer’s only minimally effective in countering Greer’s account. Therefore, even assertion that AOI had knowledge of his potential claim. viewing the evidence in the record in a light most favorable to the Government, there is no dispute over the material facts on this issue. 12 Greer v. United States No. 98-6593 No. 98-6593 Greer v. United States 13
tort claim. The government wholly failed to rebut Greer’s record are substantially dissimilar from cases where courts evidence that this was in fact the case. found agreements to be for severance purposes only. First, like most agreements in cases such as this, the a. agreement does not resolve whether it is a settlement or a severance agreement. On its face, the agreement does not First, the amount of compensation Greer received strongly appear to be drafted with a specific tort in mind. Courts supports his contention that the agreement was a settlement of generally find the fact that a waiver is broadly worded to his tort claim. Generally, other courts have reasoned that the support a finding that the settlement does not come within the manner in which an agreement calculates payment provides § 104 exclusion. See, e.g., Pipitone, 180 F.3d at 864 (noting reliable evidence of the nature of an agreement. See, e.g., that the agreement “is a general release of all claims and Pipitone, 180 F.3d at 865; Lubart, 154 F.3d at 541. makes no specific reference to whether the payment Specifically, payments are categorized as standard severance compensated Pipitone for personal injuries or sickness”); Ball pay when they are calculated based on the length of the v. Commissioner, 163 F.3d 308, 309 (5th Cir. 1998) terminated employee’s service to the employer (with possible (concluding that an agreement releasing a “laundry list” of bonus allowances for their agreement to sign the waiver) and possible claims is not a settlement for “personal injury or appear to be consistent with the amount paid to other sickness” within § 104). The agreement in this case is much employees under similar agreements. See Pipitone, 180 F.3d like those of Pipitone and Ball. It waived a variety of claims: at 865; Lubart, 154 F.3d at 541; Kroposki, 74 T.C.M. (CCH) wrongful discharge, age discrimination, Title VII, and claims at 1436. Most agreements at issue in cases such as this have regarding prior agreements between Greer and AOI. Despite easily complied with these standards, largely because they the express waiver of the wrongful discharge claim, such a were reached with numerous employees as part of a general “broad” and “generic” release does not render the payments “downsizing.” See, e.g., Lubart, 154 F.3d at 541 (concluding excludible, Ball, 163 F.3d at 309, and bolsters the that Lubart’s termination agreement, executed as part of a Government’s argument that AOI did not intend the broad IBM downsizing program, “was a standard document agreement to be a waiver of tort claims. The fact that the offered to all employees” and its amount was calculated based agreement provides for the withholding of federal income on salary and years of service); Taggi, 35 F.3d at 94 (stating taxes and that AOI withheld the amount at issue in this case that Taggi’s termination was part of a general AT&T also boosts the Government’s case that AOI intended the workforce reduction); Carey, 74 T.C.M. (CCH) at 708 payment to be for non-tort, severance-type purposes. (concluding that the release at issue “was calculated on length Nevertheless, that presumption is somewhat diluted because of service and salary” and was “essentially the same as that in Lohoff testified that AOI would “typically” withhold even in the many other cases involving IBM separation pay”); Hamm, a settlement for a wrongful discharge action. Overall, as in 74 T.C.M. (CCH) at 283 (granting weight to the fact that the most cases of this type, the agreement itself is not sufficiently employee’s termination was part of a broader IBM reduction explicit to resolve this issue. program implemented to reduce the number of employees and increase company efficiency). We thus are required to look “beyond the words” of the agreement to divine the payor’s purpose. Pipitone, 180 F.3d Greer’s case is strikingly different. His termination was at 865. When we do so in this case, we find conclusive isolated, as opposed to part of a general reduction. He was evidence that AOI intended this to be a settlement of a told simply that he “didn’t fit in” despite years of positive wrongful discharge claim. We also note that the facts in the performance reviews. And crucially, the amount AOI paid