                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-1223
                                   ___________

 Raymond C. Littrell,                     *
                                          * Appeal from the United States
              Plaintiff - Appellant,      * District Court for the
                                          * Western District of Missouri
       v.                                 *
                                          *    [PUBLISHED]
 City of Kansas City, Missouri;           *
 Richard A. Dyer, Individually and        *
 in his Official Capacity as Chief of     *
 the KCMO Fire Dept., also known          *
 as Smokey,                               *
                                          *
              Defendants - Appellees.     *
                                          *
                                     ___________

                             Submitted: June 15, 2006
                                 Filed: August 25, 2006
                                  ___________

Before ARNOLD and BEAM, Circuit Judges, and DOTY,1 District Judge
                            ___________

DOTY, District Judge.

      Raymond C. Littrell sued the City of Kansas City, Missouri (“City”), and
Richard A. Dyer, individually and in his official capacity as chief of the Kansas City


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
Fire Department, alleging violations of his First and Fourteenth Amendment rights
and unlawful employment discrimination and retaliation under Title VII. The district
court2 granted summary judgment in favor of defendants. Plaintiff appeals and we
affirm.


I.    BACKGROUND


       In 1994, the City hired Littrell as a firefighter. In 1997, he was promoted to the
position of fire apparatus operator. The City hired Dyer in 2000 as director of the fire
department and fire chief. From 1998 through 2002 Littrell worked primarily at
Station 19. Littrell alleges that other firefighters and City employees at Station 19
violated the City’s policies by openly having sex with women at the station. Other
firefighters have acknowledged that the station had such a reputation. In the summer
of 2002, Littrell met Jessica Niemeyer, who was not a City employee. He engaged in
sexual relations with her on numerous occasions at locations including Station 19.
Niemeyer periodically threatened Littrell that she would tell his wife and the fire chief
about their affair. On November 2, 2002, Littrell told his wife about his relations with
Niemeyer. The next day, Littrell told Battalion Chief Pat Dujakovich, then captain of
Station 19, that he and other firefighters had been having sex at the station and that he
refused “to be around it anymore.”


        Dujakovich took Littrell to meet with Ken McFarland, Treasurer of the Local
42 Chapter of the International Fire Fighters Union (the “Union”). McFarland told
Littrell to keep quiet and wait to “see what happens.” On November 13, Niemeyer
informed Dyer that she and Littrell had been having sex at the station. She did not
complain about or allege having sex with any other firefighters or City employees.

      2
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.

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Thereafter, the Union represented Littrell and negotiated an agreement with Dyer that
allowed Littrell to remain employed with the City. Union President Louie Wright told
Littrell that he could possibly be terminated if he did not enter the agreement. Littrell
alleges that Dujakovich said the following to him on November 26, 2002: “word is
[you’re] going to rat everybody out . . . . You need to think about it. You better take
the deal.” Littrell also asserts that McFarland asked him the following: “if [you]
implicate anyone or bring anyone else down, where would [you] go, where [are you]
going to work?” On November 29, 2002, Littrell signed the agreement, pursuant to
which he admitted to misconduct, accepted a demotion and six-month suspension and
agreed to “release and discharge the Union, the KCFD, and the City from any claims,
actions, suits and/or demands by me arising out of or in any way related to this
matter.”


       Littrell’s six-month suspension began on December 8, 2002, and he was
demoted to probationary firefighter on December 15, 2002. On June 3, 2003, he
returned from suspension and began a refresher course at the Fire Academy. After he
finished the course, Littrell was assigned to Station 5 located at the Kansas City
International Airport. Littrell’s attorney sent a letter dated June 16, 2003, to the City,
stating generally that Littrell had received threats of bodily harm. The City requested
details. After numerous such requests, Littrell submitted a list on July 31, 2003,
detailing five incidents that occurred between June 3 and July 27, 2003. The incidents
included (1) a comment on June 5, 2003, by Captain Greg Ono from Station 19 that
he would not “piss on [Littrell’s] grave,” (2) a statement on July 27, 2003, by a fire
department employee that “there’s guys out there that want to put a pick head axe
through [Littrell’s] head,” and (3) references at various times by Ono and others that
Littrell was a “rat” or “scab.”


      Dyer reviewed Littrell’s list of incidents and determined that they did not meet
the definition of a threat under the City’s Violence in the Workplace Policy. In

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particular, Dyer concluded that the nature of the incidents and Littrell’s failure to
report some of them sooner, to inquire as to who was threatening him or to contact the
police indicated that Littrell did not reasonably fear for his safety. On September 19,
2003, Littrell filed a charge of discrimination with the Equal Employment Opportunity
Commission.


       On February 2, 2004, Littrell brought this lawsuit alleging a violation of his
First Amendment right to speak on matters of public concern, a violation of his
Fourteenth Amendment right to equal protection, unlawful employment discrimination
based on sex and retaliation. The district court determined that the release in the
agreement signed by Littrell barred his claims and granted summary judgment in favor
of defendants. On appeal, Littrell contends that the release is invalid because he
signed the agreement under duress and that he has alleged sufficient facts to support
his claims.


II.   DISCUSSION


        We review de novo the district court’s grant of summary judgment in favor of
defendants. Mayer v. Nextel W. Corp., 318 F.3d 803, 806 (8th Cir.). Summary
judgment is appropriate when “there is no genuine issue as to any material fact and
. . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). A dispute is genuine if the evidence is such that it could cause a reasonable
jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S.




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242, 252 (1986). We view all evidence and inferences in a light most favorable to the
nonmoving party. See id. at 255. The nonmoving party, however, may not rest upon
mere denials or allegations in the pleadings, but must set forth specific facts sufficient
to raise a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986).


      A.     Release of Claims


       A voluntary waiver of claims bars future action on such claims. Pilon v. Univ.
of Minn., 710 F.2d 466, 468 (8th Cir. 1983) (involving Title VII claims). We presume
a waiver is voluntary when the parties negotiate an unambiguous release with the
assistance of counsel. See Grant County Sav. & Loan Ass’n v. Resolution Trust
Corp., 968 F.2d 722, 724-25 (8th Cir. 1992); Pilon, 710 F.2d at 468. Under such
circumstances, a party may nonetheless claim that the waiver was involuntary because
it was signed under duress. Pilon, 710 F.2d at 468. Duress exists if, “considering all
the surrounding circumstances, one party to the transaction was ‘prevented from
exercising his free will by the threats or wrongful conduct of the other.’” Andes v.
Albano, 853 S.W.2d 936, 942 (Mo. 1993) (quoting McCandlish v. Linker, 231 S.W.2d
162, 164 (Mo. 1950)). Financial necessity or the threat of employment termination
does not alone constitute duress. See Schmalz v. Hardy Salt Co., 739 S.W.2d 765,
768 (Mo. Ct. App. 1987) (no duress where plaintiff had choice to preserve legal rights
or be immediately discharged).


       It is undisputed that the release in the agreement unambiguously applies to
those claims relating to Littrell’s misconduct, suspension, demotion and other such
matters addressed by the agreement. The agreement was also a result of the parties’
negotiation with the assistance of legal counsel. Littrell argues that the release is
invalid, however, because he signed the agreement under duress. To support his


                                           -5-
argument, he points to alleged threats made by Dujakovich, McFarland and Wright.3
The comments by McFarland and Wright only involved the possible termination of
Littrell’s employment, which does not constitute duress. See id. at 768. Only
Dujakovich’s comment to Littrell that he “better take the deal” could remotely qualify
as a threat, but it was vague at best and temporally removed from the signing of the
agreement. Considering all the surrounding circumstances, we conclude that no
reasonable jury could find that the conduct of others prevented Littrell from exercising
his free will when he signed the agreement. The district court properly determined
that the release signed by Littrell was valid. On that basis, summary judgment in
favor of defendants is warranted as to those claims relating to the agreement.


      B.     Claims Arising After the Release


       Littrell contends that two of his First Amendment and retaliation claims are not
barred by the release because they relate to actions that occurred after the agreement
was signed and that were not contemplated by the agreement. We agree that Littrell
may challenge such actions by defendants. To establish a prima facie case of
retaliation based on the First Amendment, a public employee plaintiff must show that
(1) he engaged in protected speech, (2) his interest as a citizen in making such speech
outweighs the employer’s interest in promoting efficient public service and (3) his
speech was a motivating factor in the adverse action taken against him. Howard v.
Columbia Pub. Sch. Dist., 363 F.3d 797, 801 (8th Cir. 2004); see Okruhlik v. Univ.
of Ark., 395 F.3d 872, 878 (8th Cir. 2005) (noting the same analysis applies to First
Amendment and Title VII retaliation claims). Whether speech was a motivating factor




      3
         To the extent Littrell points to incidents that occurred after he signed the
release, such evidence is immaterial to the issue whether he exercised free will at the
time of signing.

                                          -6-
“is a question of fact, but the sufficiency of the evidence to create an issue of fact is
a question of law.” de Llano v. Berglund, 282 F.3d 1031, 1036 (8th Cir. 2002).


       Littrell alleges that his placement at Station 5 and defendants’ failure to
investigate his complaint of death threats were in retaliation for his reporting sexual
activity at Station 19. However, Littrell has not set forth any evidence to demonstrate
that his speech in November of 2002 motivated defendants to engage in their alleged
retaliatory conduct in the summer of 2003. As to his placement at Station 5, he
concedes that defendants made the decision based upon the animosity Littrell might
experience from his co-workers at other stations. (See Appellant’s Br. at 32.) Littrell
had the same concern and has never requested placement at a station other than Station
5. As to defendants’ refusal to investigate his complaints of death threats, Littrell
relies only upon his allegation that the refusal was a result of the statements he made
over six months before. Such a bare allegation is insufficient to survive summary
judgment. See Howard, 363 F.3d at 801-02 (mere speculation insufficient to support
First Amendment claim). For these reasons, we conclude that Littrell has failed to
meet his prima facie burden on his First Amendment retaliation claims. Summary
judgment was warranted.


III.   CONCLUSION


       For the reasons stated, we affirm the district court’s grant of summary judgment
in favor of defendants.
                         ______________________________




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