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The Honorable David S. Doty, United States District Judge for the District of

Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-1223

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Raymond C. Littrell,

Plaintiff - Appellant,

v.

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.

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Appeal from the United States

District Court for the

Western District of Missouri

 [PUBLISHED]

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Submitted: June 15, 2006

 Filed: August 25, 2006

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Before ARNOLD and BEAM, Circuit Judges, and DOTY,1

 District Judge

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

District of Missouri.

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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.
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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
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 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.

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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
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“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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