dissenting:
The statement of facts on page 3 of appellant Laniok’s brief contains the following pertinent excerpt:
The employer’s reason for the waiver being drafted was that, due to Mr. La-niok’s age, his pension costs would be too high (A. 98, 92-93).
On page 9 of his brief, Laniok’s counsel elaborates on this point as follows:
When asked by his own counsel why he had Mr. Laniok sign the waiver, Mr. Lippman [Brainerd’s president] stated (A. 98):
A. Because I think he was 58 or 59 years old at the time, right.
Q. That is correct.
A. And checking what his pension costs would be. They would be very exorbitant, very costly. I told him that is why I could only pay him the fee we agreed upon, the wage.
Laniok worked for Brainerd until June 30, 1988, when he retired. During that time Brainerd made no payments to the Pension Plan on his behalf.
On September 27, 1989, Laniok brought this action seeking judgment against the Advisory Committee of the Brainerd Manufacturing Company Pension Plan in the amount of $75,000 plus interest, costs, disbursements and attorneys’ fees. After issue was joined, both parties moved for summary judgment. Laniok included with his moving papers a “STATEMENT OF FACTS AS TO WHICH THERE IS NO GENUINE ISSUE.” Among these “FACTS” was the following:
At the time of signing the waiver, Mr. Laniok understood that he was giving up his rights to pension benefits.
This statement was supported fully by Laniok’s testimony on deposition:
*1370I says, “Why should I sign it?” I says,
“That means that I don’t get any benefits.”
* * * * * *
Q. When you say you knew what that meant when you signed it, you’re referring to Exhibit 1 [the waiver], correct?
A. Yes.
* * * * * *
Q. You read Exhibit 1 then before you signed it, right?
A. Yes.
Q. And you understood it?
A. I understood it.
Despite the clear and unambiguous language of the written waiver and Laniok’s unequivocal admission that he understood it, my learned colleagues contrive to make a question of fact for a jury. I disagree. If the summary judgment process is to have any meaning at all, the district court’s decision is a paradigmatic example of its proper use.
In a nutshell, there are no factual issues for a jury to decide. It is undisputed that Laniok had some familiarity with pension plans, because he was a participant in another company's plan and was receiving benefits from it. Defendants do not contend that Laniok was familiar with the details of the Brainerd Plan, and we therefore may accept this lack of familiarity as a given. What then is the factual issue that must be presented to a jury? There is none. The issue, in short, is one of law, not of fact, and it was decided correctly by the district court.
We are not confronted here with the concern we expressed in Bormann v. AT & T Communications, Inc., 875 F.2d 399, 402 (2d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 292, 107 L.Ed.2d 272 (1989), for “the dilemma of older workers who, after many years of employment, are offered enhanced termination benefits for a waiver of legal rights.” When Laniok signed the waiver, he had no legal right to participate in Brainerd’s Pension Plan. Under the terms of the Plan, Laniok would not be eligible to participate in the Plan until he had been employed by Brainerd for a year, and there was no assurance whatever that this contingency would be met. What we have here is an application for employment by a 58 year old man, already receiving a pension from another company, who intended to work for only a limited number of years. As his counsel has pointed out, “[t]he employer’s reason for the waiver being drafted was that, due to Mr. Laniok’s age, his pension costs would be too high.” This was purely and simply a business decision that did not impose upon Brainerd the obligations of a fiduciary. See Amato v. Western Union Int’l, Inc., 773 F.2d 1402, 1416-17 (2d Cir.1985), cert. dismissed, 474 U.S. 1113, 106 S.Ct. 1167, 89 L.Ed.2d 288 (1986); Payonk v. HMW Indus., Inc., 883 F.2d 221, 224-29 (3d Cir.1989). The legality and enforceability of the waiver in this case is a question of law. Once again, I cast my lot with the district judge. See Rattner v. Netburn, 930 F.2d 204, 211 (2d Cir.1991) (Van Graafeiland, dissenting). I vote to affirm.