position, any material change in his duties, or significant reduction in rank, may constitute a breach of his employment agreement." Rudman v. Cowles Communications, Inc., 30 N.Y.2d 1, 10, 330 N.Y.S.2d 33, 280 N.E.2d 867 (1972); see also Harden v. Warner Amex Cable Communications Inc., 642 F. Supp. 1080, 1095 (S.D.N.Y. 1986) (holding that plaintiff "must show that there was a material change in his duties or a significant reduction in rank"). Here, I find that a reasonable jury could find that the Board's actions caused a material change in Donovan's duties. Moreover, Donovan presented a triable issue of fact concerning his inability to affect the incentive provision in his contract. See Zeumer v. Fire Burglary Instruments, Inc., 210 A.D.2d 318 (2d Dep't 1994) (affirming trial court's finding that defendants breached plaintiffs' employment contract by changing plaintiff's position and preventing him from earning contractual incentive bonuses).
II. Plaintiff's Cross Motion for Summary Judgment
In their answer to Donovan's amended complaint, defendants posited fifteen affirmative defenses. Answer, Dkt. No. 12, PP 36-50. In his cross motion for summary judgment, Donovan sought to dismiss defendants' second, third, fourth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth and fourteenth affirmative defenses.
In response, defendants specifically argued that their second, third and fourth affirmative defenses should not be dismissed. Def. Reply Mem., Dkt. No. 33, at 14-15.
A. Second, Third, and Fourth Affirmative Defenses
Defendants' second, third, and fourth affirmative defenses alleged that Donovan (1) waived the right to challenge defendants' employment decision; (2) is estopped from challenging the decision; and (3) consented to defendants' employment decision. See Answer, Dkt. No. 12, PP 37, 38, 39. Defendants premised these defenses on Donovan's assertions to the Board that if it was unhappy with his performance then it should terminate his employment. Def. Reply, Dkt. No. 33, at 4.
In order for a court to enforce a waiver of an age discrimination claim, the waiver must be written and knowingly and voluntarily made and must meet specific statutory requirements such as (1) referring to the ADEA; (2) advising the individual to consult with an attorney; and (3) providing a grace period in which to consider signing the waiver. 29 U.S.C. §§ 626(f)(1)(A), (B), (E), (F). The statements made by Donovan do not meet this standard. Defendants do not dispute that Donovan's statements fail to constitute a formal waiver, but argue that "having invited the Board to terminate his employment, [he] cannot now be heard to complain that the Board should not have done so." Def. Reply Mem., Dkt. No. 33, at 14. I disagree. If Donovan is successful in proving that discriminatory animus infected the Board's decision, the fact that he challenged the Board to terminate him does not preclude a finding in his favor. Plaintiff's motion for summary judgment as to defendants' second, third, and fourth affirmative defenses is granted.
B. Eighth and Fourteenth Affirmative Defenses.
Defendants' eighth affirmative defense is that any damages Donovan suffered were the result of his own culpable conduct, and their fourteenth affirmative defense is that Donovan failed to make a reasonable inquiry into the accuracy of his allegations. Answer, Dkt. No. 12, PP 43, 49. Defendants did not oppose Donovan's motion for summary judgment as to these defenses, and I therefore grant Donovan's motion.
For the foregoing reasons, it hereby is
ORDERED, that defendants' motion for summary judgment is DENIED, and
ORDERED, that plaintiff's motion for summary judgment as to defendants' second, third, fourth, eighth, and fourteenth affirmative defenses is GRANTED, and it is further
ORDERED, that plaintiff's motion for summary judgment as to defendants' sixth, seventh, ninth, tenth, eleventh and twelfth affirmative defenses is GRANTED in part and DENIED in part.
IT IS SO ORDERED.
Dated: July 16, 1997
Syracuse, New York
ROSEMARY S. POOLER
United States District Judge