The employer in this case agreed to settlement that would pay the plaintiff $40,000 ?less all lawfully required withholdings.? ?The employer delivered a check for $25,000, taking into account both federal and state income taxes ($12,000) and FICA deductions ($3,000).?? The employee, who was no longer with the company, claimed that all of the withholdings were not required by law and refused to dismiss his case.?? The district agreed with the employer that all of ?the withholdings were proper because the plaintiff?s complaint did not allege emotional distress. ?The Ninth Circuit affirmed. ?It held that a court should look first to how the settlement agreement characterizes the payments. Absent that, it is intent of payor that controls. ?In this case the reference to ?withholdings? in the settlement agreement strongly supported the inference? the? settlement? was? for? backpay.?? ?The court further held that the payment was subject to FICA taxes even though the employee no longer worked for the company.?? This case drives home the importance of expressly characterizing the nature of settlement payments in the agreement. Rivera? ?v.?? Baker? ?West? ?Inc.,? ?No.? ?03-17261 (12/13/05; Bybee, Tallman, Bea)