                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-2999
                                       ___________

                                    MARY BATJER,
                                             Appellant

                                             v.

                               AHS HOSPITAL CORP
                       ____________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                         (D.C. Civil Action No. 2-12-cv-04613)
                      District Judge: Honorable Susan D. Wigenton
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 12, 2014

         Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges

                           (Opinion filed: December 12, 2014)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Mary Batjer, proceeding pro se, appeals the District Court’s dismissal of her

complaint alleging age discrimination by her former employer, AHS Hospital Corp. For

the reasons set forth below, we will affirm the District Court’s judgment.

       Batjer is a 74 year-old woman. She was hired by AHS Hospital Corp. in October

1992 as a Word Perfect specialist. She eventually became a pediatric coordinator and

held that position until AHS terminated her employment in February 2011. Batjer

claimed that the first signs of age discrimination occurred when she returned from a hip

replacement operation several years ago.1 Her supervisor’s part-time secretary, a woman

in her mid-20s, had performed Batjer’s duties while she recovered from surgery. When

Batjer returned to work, her supervisor often praised his significantly younger secretary

for being able to “think outside the box,” while commenting that Batjer was “stuck in the

old ways.” She also claimed that he repeatedly asked when Batjer’s other hip would need

surgery, and noted what a “big birthday” she was marking on the day she turned 70,

though she had never shared her date of birth with him.

       Batjer claimed that when her supervisor hired a new doctor as an assistant, he

developed a plan to get rid of her in order to promote his part-time secretary to the

pediatric coordinator position. At some point in 2010, the assistant accused Batjer of


1
  The record is unclear on the timing of Batjer’s surgery. The amendment to her
complaint stated that the surgery occurred in November 2008. The EEOC charge of
discrimination, which was attached to her complaint, stated that it occurred in February
2009.

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making a racist comment and filed a complaint with the Human Resources Department.

Batjer denied the charge. Eight months later, she was fired and the part-time secretary

was promoted into the job. Batjer claimed that the manager of the Human Resources

Department threatened to block her application for unemployment benefits unless she

signed a release waiving her right to bring suit against AHS. Batjer signed the release

and received 18 weeks of severance pay.

       Nine months later, Batjer filed a charge of age discrimination against AHS with

the Equal Employment Opportunity Commission. The Commission declined the case

and issued Batjer a right-to-sue letter. She then filed this complaint in the District of

New Jersey, alleging unlawful discrimination under the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 623. AHS moved under Federal Rule of Civil

Procedure 12(b)(6) to dismiss the complaint. The District Court held a hearing on that

motion — and ruling from the bench — granted it with prejudice. The District Court

further concluded that a grant of summary judgment to AHS would also be appropriate.

Batjer filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1291.

       As the District Court rightly recognized, we must consider first and foremost

whether the release Batjer signed is valid. In her complaint, Batjer stated that AHS

forced her to sign the waiver by threatening to block her unemployment benefits if she

failed to do so. Waivers signed under duress may be ineffective. See generally, 25 Am.

Jur. 2D Duress and Undue Influence § 26 (2014). However, at the hearing before the

                                              3
District Court, Batjer explained that she signed the release simply so she could move on

with her life. In light of Batjer’s statement, the District Court concluded that the release

was signed knowingly and voluntarily. That conclusion is bolstered by the fact that

Batjer waited over two weeks before she signed the agreement, during which time she

consulted two attorneys.2

       Although we have taken a generous view about what may be considered by a court

entertaining a Rule 12(b)(6) motion — see, e.g., In re Burlington Coat Factory Sec.

Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) — the District Court may have exceeded

those limits here when it relied on statements made by Batjer at its hearing. We need not

decide that issue, however, because the District Court alternatively ruled that Batjer’s

complaint could not survive the summary judgment standard. See De Tore v. Local No.

245, 615 F.2d 980, 983 (3d Cir. 1980). We endorse that conclusion.3 Given the

circumstances surrounding Batjer’s adoption of the release — including the passage of

time, the consultation with counsel, and what she herself has described as her simple


2
  The passage of time and consultation with counsel undermine a finding of duress. See,
e.g., Coventry v. U.S. Steel Corp., 856 F.2d 514, 525 n.13 (3d Cir. 1988).
3
  “Summary judgment is appropriate when there are no genuine issues of material fact
and, viewing the evidence in the light most favorable to the non-moving party, the
moving party is entitled to judgment as a matter of law.” Wastak v. Lehigh Valley
Health Network, 342 F.3d 281, 285 (3d Cir. 2003). Our review of a district court’s grant
of summary judgment is plenary. See id. For reasons made clear in the text, any error in
the District Court’s invocation of summary judgment was harmless under the
circumstances presented. See In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280,
287-89 (3d Cir. 1999).
                                             4
desire to move on — it is evident that her waiver was knowing and voluntary. See

Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 294-95 (3d Cir. 2003).

       In her opposition to the motion to dismiss, Batjer further argued that the waiver

was ineffective because it did not comply with the Older Workers Benefit Protection Act

(OWBPA), 29 U.S.C. § 626(f). The OWBPA is an amendment to the ADEA

implementing a statutory stricture on waivers of age discrimination claims. See Oubre v.

Entergy Operations, Inc., 522 U.S. 422, 426-28 (1998). Specifically, it provides a

number of factors that must be fulfilled for waivers of ADEA claims to be considered

knowing and voluntary. The separation agreement at bar fulfills each of the relevant

factors. See 29 U.S.C. § 626(f)(1)(A)-(G).4

       In sum, Batjer’s release of claims against AHS was knowing, voluntary, and

enforceable, and as the District Court concluded, it stands as an insuperable barrier to her

complaint. See Wastak, 342 F.3d at 294-95. Accordingly, we will affirm the judgment

of the District Court. The motion requesting oral argument is denied.




4
  Batjer appears to argue that the release had to comply with the OWBPA factors relating
to waivers of claims by employees who were terminated in an employer’s group
discharge program. Because the record does not demonstrate any such group discharge
program, the reduction-in-force factors do not apply here. Cf. Oberg v. Allied Van Lines,
Inc., 11 F.3d 679, 682 (7th Cir. 1993) (company’s termination program under which over
sixty employees were discharged at once constituted a reduction in force, triggering
particular provisions of the OWBPA).

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