                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 10-1504
                                    ____________

                                 RHAUNI GREGORY,
                                           Appellant
                                        v.

            DERRY TOWNSHIP SCHOOL DISTRICT; TIMOTHY QUINN;
           MRS. BANDUCCI; MICHAEL MURPHY; CINDY GOLDWORTHY;
                DR. PARRISH; TOM FERGUSON; BEULAH CHABAL

                                    ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                           (D.C. Civil No. 09-cv-00780)
                   District Judge: Honorable Sylvia H. Rambo
                                  ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 14, 2011
                                   ____________

              Before: SCIRICA, BARRY and VANASKIE, Circuit Judges

                                (Filed: March 21, 2011)
                                     ____________

                                      OPINION
                                    ____________

BARRY, Circuit Judge

      Rhauni Gregory appeals from the District Court’s order granting summary

judgment to defendants. Gregory, a public-school teacher, sued her former employer as
well as certain co-workers, union officials, and the parent of one of her students, alleging

that she was discriminated against based on her race, in violation of 42 U.S.C. §§ 1981

and 1983. She signed a release prior to resigning from her teaching position, and claims

that the Court erred in finding that the release was valid and that she had waived her right

to sue. For the reasons discussed below, we will affirm.

                                    I.     Background

       Gregory, a former high-school English teacher with the Derry Township School

District, filed a complaint against the school district in April 2009, claiming that she was

subjected to harassment and hostile treatment, and that she was forced to resign against

her will because of her race, which is African-American. Gregory alleged that the

harassment began after she had an encounter with a student and the student’s politically

connected parent. Among the defendants named in her complaint was Tom Ferguson, the

Pennsylvania State Education Association (“PSEA”) official who represented and

consulted with her in her dealings with the school district. The school district,

representing itself and the individuals it employed (the “School District Defendants”),

answered the complaint and claimed, as an affirmative defense, that Gregory’s claims

were barred by the terms of her separation agreement. The School District Defendants

thereafter filed a motion for judgment on the pleadings, which the District Court

converted into a motion for summary judgment, pursuant to Rule 12(d) of the Federal

Rules of Civil Procedure.


                                              2
       The District Court held an evidentiary hearing and took testimony from Gregory as

well as four other individuals. Gregory testified that during the 2006-07 school year, she

was evaluated unfavorably by her supervisor, Defendant Michael Murphy, and placed on

an intensive assistance track. Gregory worked with the school district’s union

representative and her own union representative to approve a written “intensive assistance

action plan,” which she was then obliged to follow. App. at 64-66. However, Gregory

felt that the manner in which the school district implemented the intensive assistance

action plan was “oppressive,” and she ultimately decided to resign her position. Id. at 67.

Ferguson negotiated the terms of her resignation with the school district, although

Gregory testified that her meetings with Ferguson were short and unsatisfactory. Gregory

eventually agreed that she would resign, and in return, the school district agreed to

provide her and her family with health insurance through the end of 2007, or until she

found other employment, as well as a positive letter of reference. These terms were

included in a document titled “Separation Agreement and General Release” (hereinafter,

“Separation Agreement” or “Agreement”) that Gregory signed on April 19, 2007. The

Agreement also stated that Gregory released the school district and all its employees from

any and all claims arising out of her employment with Derry Township, and contained a

clause in which she acknowledged that she fully understood the Agreement and had been

given an opportunity to consult with an attorney.

       The testimony at the hearing focused particularly on the details surrounding


                                             3
Gregory’s signing of the Separation Agreement. On April 19, 2007, Timothy Quinn, the

school principal, called her to say that he was coming to her classroom with the

Agreement for her to sign. Although Ferguson had negotiated the Agreement on

Gregory’s behalf, Gregory had never seen a copy of the document. Five to ten minutes

after class ended, Quinn arrived with the Agreement, and Gregory reviewed it for about

fifteen minutes with Quinn sitting at her side. Quinn was unable to answer all of

Gregory’s questions about the Agreement, but Quinn told her that it had already been

approved by Ferguson. Between the time that Quinn called Gregory and when he arrived

at her classroom, Gregory tried, unsuccessfully, to reach Ferguson by telephone. Gregory

signed the Separation Agreement while Quinn was in her classroom. The following day,

Gregory submitted a letter of resignation, effective June 30, 2007. Gregory continued to

teach until the end of the school year.

       The District Court granted summary judgment to the School District Defendants.

The Court found that, based on the totality of the circumstances, Gregory had enough

time to review the Separation Agreement before signing it, and that she did not sign under

coercion or duress. The Court also dismissed Gregory’s claims against Ferguson and

another defendant because she never served them with the complaint. Gregory now

appeals the dismissal of her claims against the School District Defendants.

                                     II.   Discussion

       The District Court had jurisdiction over Gregory’s claims under 28 U.S.C. §§ 1331


                                            4
and 1343. We have jurisdiction under 28 U.S.C. § 1291. We review a district court’s

grant of summary judgment de novo, applying the same standard of law as the district

court. Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010). Summary

judgment is appropriate “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “A genuine issue of material fact exists when the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

       Gregory argues that the District Court erred in granting summary judgment

because a jury should have been allowed to determine whether she knowingly and

intelligently released her claims against the School District Defendants when she signed

the Separation Agreement. Courts in this circuit use a “totality of the circumstances” test

to determine whether a party knowingly and intelligently waived litigation rights. See

Jakimas v. Hoffman-La Roche, Inc., 485 F.3d 770, 781 (3d Cir. 2007); see also Cirillo v.

Arco Chem. Co., 862 F.2d 448, 451 (3d Cir. 1988), superseded by statute on other

grounds, as recognized in Long v. Sears Roebuck & Co., 105 F.3d 1529, 1539 (3d Cir.

1997). Relevant factors in reviewing the totality of the circumstances include:

       (1) the clarity and specificity of the release language; (2) the plaintiff’s
       education and business experience; (3) the amount of time plaintiff had for
       deliberation about the release before signing it; (4) whether Plaintiff knew
       or should have known his rights upon execution of the release; (5) whether
       plaintiff was encouraged to seek, or in fact received benefit of counsel; (6)
       whether there was an opportunity for negotiation of the terms of the
       Agreement; and (7) whether the consideration given in exchange for the
                                                5
       waiver and accepted by the employee exceeds the benefits to which the
       employee was already entitled by contract or law.

Cirillo, 862 F.2d at 451.

       No material facts relevant to the above factors are in dispute. Before us, as she did

before the District Court, Gregory challenges the validity of the release almost

exclusively on the basis of the third factor, the amount of time she had for deliberation

before signing the Separation Agreement. Both parties agreed on the essential factual

conditions under which she signed and the amount of time she had to deliberate. The

District Court, was, thus, entitled to resolve the ultimate question of whether she

knowingly and voluntarily released her right to bring claims against the School District

Defendants. See id. at 452-55 (considering the totality of the circumstance factors and

concluding, without the assistance of a jury, that a release was valid); see also Bormann v.

AT&T Commc’ns, Inc., 875 F.2d 399, 403-04 (2d Cir. 1989) (same); Mosley v. Bay Ship

Mgmt., Inc., 174 F. Supp. 2d 192, 196-99 (D.N.J. 2000) (same).

       Nor was the District Court’s ultimate determination in error. Despite the

somewhat brief period during which Gregory reviewed the Separation Agreement—

fifteen minutes—her representatives, including Ferguson, negotiated the terms of the

Agreement and ensured that it contained what was most important to Gregory, most

particularly continued health insurance1 and a positive letter of recommendation. Her



1
       The Derry Township Superintendent of Schools testified that it was atypical for the
school district to provide health insurance to teachers following a resignation, and that the
                                              6
representatives also ensured that she was allowed to resign at the end of the school year,

rather than be fired. Notably, at the hearing, Gregory could not identify what it was in the

Agreement that troubled or confused her.

       Gregory contends as well that she signed the Agreement under duress. Quinn’s act

of sitting next to Gregory while she reviewed the Agreement may have made her

uncomfortable and even pressured her into taking a course of action that deserved more

reflection. But Pennsylvania law is clear that this would not constitute duress. Under

Pennsylvania law, duress is defined as

       that degree of restraint or danger, either actually inflicted or threatened and
       impending, which is sufficient in severity or apprehension to overcome the
       mind of a person of ordinary firmness: . . . The quality of firmness is
       assumed to exist in every person competent to contract, unless it appears
       that by reason of old age or other sufficient cause he is weak or infirm.

Carrier v. William Penn Broad. Co., 233 A.2d 519, 521 (Pa. 1967) (quoting Smith v.

Lenchner, 205 A.2d 626, 628 (Pa. Super. Ct. 1964)). Further, “where the contracting

party is free to come and go and to consult with counsel, there can be no duress in the

absence of threats of actual bodily harm.” Three Rivers Motors Co. v. Ford Motor Co.,

522 F.2d 885, 893 (3d Cir. 1975) (citing Carrier, 233 A.2d at 521); see also Wastak v.

Lehigh Valley Health Network, 342 F.3d 281, 295 (2003) (“[T]he law is clear that the

existence of financial pressure to sign a waiver is insufficient to establish that it was

executed involuntarily.”); Degenhardt v. Dillon Co., 669 A.2d 946, 951 (Pa. 1996)


district paid out more than $24,000 to medical providers for Ms. Gregory and her family
through the end of 2007.
                                            7
(rejecting argument that duress rule from Carrier is inapplicable when counsel is

unavailable at the precise moment that an agreement is signed). Gregory was free to

consult with counsel or to take the Agreement home and review it further, and she

acknowledged that no one physically forced her or threatened her in any way if she failed

to sign.2

                                     III.   Conclusion

       We will affirm the order of the District Court.




2
        Gregory takes issue with the District Court’s decision to convert the School
District Defendants’ motion for judgment on the pleadings into a motion for summary
judgment without giving her the opportunity for extended discovery. Because she failed
to raise the issue with the District Court, she cannot do so now. Brenner v. Local 514,
United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1298 (3d Cir. 1991) (“It is
well established that failure to raise an issue in the district court constitutes a waiver of
the argument.”).
                                                8
