UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

DONNA VANLANDINGHAM, 

 Plaintiff - Appellant, 

v. 

GRAND JUNCTION REGIONAL 

AIRPORT AUTHORITY, 

 Defendant - Appellee. 

No. 14-1252 

(D.C. No. 1:13-CV-03414-RBJ) 

(D. Colo.)

 

ORDER AND JUDGMENT*

 

Before KELLY, BALDOCK, and MORITZ, Circuit Judges. 

 

 Donna VanLandingham appeals from the district court’s Federal Rule of Civil 

Procedure 12(b)(6) dismissal of her complaint asserting retaliatory employment 

termination in violation of the False Claims Act (FCA), 31 U.S.C. § 3730(h), by the 

Grand Junction Regional Airport Authority (Airport Authority). The district court 

decided that she did not state an actionable claim because she knowingly and 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 11, 2015

Elisabeth A. Shumaker 

Clerk of Court

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voluntarily signed a release of all claims against the Airport Authority after her 

discharge from employment and the release did not violate public policy. Exercising 

jurisdiction under 28 U.S.C. § 1291, we affirm. 

BACKGROUND 

 Ms. VanLandingham alleged the following in her complaint. See Albers v. Bd. 

of Cnty. Comm’rs of Jefferson Cnty., 771 F.3d 697, 699 n.1 (10th Cir. 2014) 

(recognizing that when appeal is from grant of motion to dismiss, facts are taken as 

alleged in complaint and in light most favorable to plaintiff). In 2003, she began 

working for the Airport Authority as the Public Safety Assistant. After several 

promotions, she became the Airport Security Coordinator, reporting directly to the 

then Director of Aviation, Rex Tippetts. In that position, she was responsible for all 

aspects of airport security. 

A project to fence the perimeter of the airport began in 2009. Although the 

fence initially was to prevent wildlife incursions on the runway, Mr. Tippetts later 

decided the fence should be a security fence to restrict human access to the airport 

property. Nonetheless, he continued to request funding from the Federal Aviation 

Administration and the Transportation Safety Administration (TSA) for a 

wildlife-hazard fence, knowing that a security fence was ineligible for federal 

funding. 

 In 2010, Mr. Tippetts directed Ms. VanLandingham to attend a meeting of 

airport tenants to inform them that a fence was being constructed to meet a TSA 

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requirement. She refused to do so, believing this to be a lie. After her refusal, 

Mr. Tippetts reassigned her to work at an airport Subway restaurant. A month later, 

he terminated her employment and presented her with a Confidential Separation 

Agreement and General Release. The agreement, which Ms. VanLandingham signed 

twenty days after receiving it, provided for a lump sum payment of $8,153.60, the 

equivalent of seven weeks of pay, as separation compensation; three months of paid 

medical insurance; and outplacement services in exchange for her agreement to 

release the Airport Authority from “any and all causes of action” relating to her 

employment or termination. Aplt. App. at 64. The agreement also stated that she 

was signing voluntarily after having had sufficient time to consult with a lawyer, that 

she had twenty-one days to consider the agreement, and that she had seven days after 

signing to revoke the agreement. Ms. VanLandingham believed that she had no 

choice but to sign the agreement because she did not have time or money to seek the 

advice of an attorney and because she was unaware that laws protected her from 

whistleblowing retaliation if she revealed information involving false claims made to 

the United States. 

Subsequently, after consulting an attorney, Ms. VanLandingham filed this 

action, alleging that the Airport Authority violated the anti-retaliation prohibition of 

the FCA. The Airport Authority moved to dismiss under Rule 12(b)(6), asserting, 

based on the release, that the complaint failed to state a claim for relief. See Miller v. 

Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965) (permitting defendant to raise 

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affirmative defense in motion to dismiss for failure to state claim if defense appears 

plainly on face of complaint). The district court granted the motion. Considering the 

totality of the circumstances surrounding the agreement and release, the court 

concluded that it was enforceable, because Ms. VanLandingham’s allegations were 

insufficient to plausibly plead that her waiver was not voluntary and knowing. To 

support this conclusion, the court determined, based on the complaint allegations, 

that (1) she was not unsophisticated; (2) she had twenty-one days to consider the 

agreement, signed on the twentieth day, and had seven days to revoke the agreement 

after signing, but she did not do so; (3) it was not plausible that she could not afford 

an attorney because she had received more than $9,000 for accrued, unpaid salary 

and leave time upon her termination; (4) she could have chosen to reject the 

additional separation pay; (5) she retained that money; and (6) the agreement stated 

that she signed voluntarily and with full understanding. Also, the court rejected 

Ms. VanLandingham’s argument that the release violated public policy and was not 

enforceable. 

STANDARD OF REVIEW 

 We review the district court’s Rule 12(b)(6) dismissal de novo. See Kan. Penn 

Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). “To survive a motion 

to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009) (internal quotation marks omitted). A claim is facially plausible if the 

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plaintiff has pled “factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Id. Although we 

accept as true all factual allegations in the complaint, we do not accept as true legal 

conclusions and conclusory statements. Id. at 678-79. 

ANALYSIS 

1. Knowing and Voluntary Waiver 

 Ms. VanLandingham argues that for the agreement and release to bar her claim 

for retaliatory discharge under the FCA, the Airport Authority must prove that she 

knowingly and voluntarily signed the release and may not simply rely on the 

agreement language that she entered into the release knowingly and voluntarily. She 

also argues that determining whether she knowingly and voluntarily entered into the 

release requires factual findings, which can only be made after evidence is submitted 

and weighed. She therefore faults the district court for making an unsupported 

factual finding that she knowingly and voluntarily waived her rights. 

 In assessing whether Ms. VanLandingham’s waiver was knowing and 

voluntary, we, like the district court, consider the totality of the circumstances 

asserted by her, including: 

(1) the clarity and specificity of the release language; (2) [her] 

education and business experience; (3) the amount of time [she] had for 

deliberation about the release before signing it; (4) whether [she] knew 

or should have known [her] rights upon execution of the release; 

(5) whether [she] 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 

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exchange for the waiver and accepted by [her] exceeds the benefits to 

which [she] was already entitled by contract or law. 

Torrez v. Pub. Serv. Co. of N.M., Inc., 908 F.2d 687, 689-90 (10th Cir. 1990) 

(per curiam) (internal quotation marks omitted). “These factors provide objective 

evidence tending to support or undermine the employee’s claim that [s]he was 

subjectively unaware that [s]he was waiving important statutory rights.” Myricks v. 

Fed. Reserve Bank of Atlanta, 480 F.3d 1036, 1040 (11th Cir. 2007) (brackets and 

internal quotation marks omitted). 

 Reading Ms. VanLandingham’s complaint alongside these totality-of-thecircumstances factors, we agree with the district court that she failed to state a 

plausible claim that she did not enter into the waiver knowingly and voluntarily. The 

release language clearly and specifically released all claims regarding her 

employment and termination that she might have against the Airport Authority. The 

language was broad enough to include possible claims she was not even aware of 

when she signed the agreement and release and to include an FCA claim. 

 The complaint does not state Ms. VanLandingham’s educational background,1

but it does indicate that she had business experience in her positions with the Airport 

Authority. She was an eight-year employee, who had received five or six promotions 

and had been responsible for all aspects of security in her position as the Airport 

Security Coordinator. 

 

1

 Ms. VanLandingham states in her reply brief that she has a high school 

education. 

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Ms. VanLandingham agrees that she had an adequate amount of time, 

twenty-one days, to review the agreement. The agreement advised her to consult 

with a lawyer before signing it. She did not do so, but she did review the document 

for twenty days before signing it. Also, she had seven days to revoke after signing, 

but, again, she did not do so. Regardless of whether Ms. VanLandingham had an 

opportunity to negotiate the terms of the agreement, she concedes that she received a 

separation payment of over $8,000, along with other benefits, that she would not 

have received unless she signed the release. Additionally, the final paragraph of the 

agreement, under which she signed, stated that she “knowingly and voluntarily 

sign[ed] th[e] Agreement.” Aplt. App. at 66. 

Even though Ms. VanLandingham may not have known the full extent of her 

rights, she had sufficient time and opportunity to consult with an attorney to explore 

her rights, but she did not choose to do so. Instead, she chose to sign the agreement 

and accept the separation pay and other benefits that were not owed to her. 

Accordingly, we conclude that she did not state a plausible claim that she did not 

knowingly and voluntarily waived her right to bring a retaliation claim under the 

FCA. We also conclude that the district court did not apply a plausibility test to her 

state of mind; rather, the court based its decision on her complaint allegations 

without engaging in fact finding. 

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2. Disposition on Motion to Dismiss 

 Ms. VanLandingham alleges that the district court improperly converted the 

motion to dismiss to a motion for summary judgment without giving the parties 

notice when it considered the agreement and release. We disagree. Although her 

complaint referred to the agreement and release, Ms. VanLandingham did not attach 

a copy of it to the complaint. Instead, the Airport Authority attached it to the motion 

to dismiss. The district court therefore properly considered the agreement and 

release in deciding whether to dismiss under Rule 12(b)(6), because the document 

was central to Ms. VanLandingham’s claims and neither party disputed its 

authenticity. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); 

see also Yassan v. J.P. Morgan Chase & Co., 708 F.3d 963, 975 (7th Cir. 2013) 

(deciding district court properly considered release where it was referred to 

repeatedly in complaint and defendant attached copy of release to motion to dismiss). 

3. Public Policy 

 Finally, Ms. VanLandingham argues that the district court erred in rejecting 

her argument that enforcement of the release was barred by public policy. She 

contends that the policy of the FCA to protect an employee from retaliation for 

bringing forward information about fraud against the government outweighs a private 

release. 

Without an “affirmative indication of Congress’ intent to preclude waiver,” 

courts “presume[] that statutory provisions are subject to waiver by voluntary 

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agreement of the parties.” United States v. Mezzanatto, 513 U.S. 196, 201 (1995). 

The FCA provides that qui tam actions by a private person, which this case is not, 

“may be dismissed only if the court and the Attorney General give written consent to 

the dismissal and their reasons for consenting.” 31 U.S.C. § 3730(b)(1). In 

comparison, the retaliation provision of the FCA, applicable to this case, does not 

have a similar requirement. See id. § 3730(h). Based on this difference, we agree 

with the district court that the FCA does not preclude Ms. VanLandingham’s waiver 

of her private retaliation claim. See, e.g., Brown v. City of S. Burlington, 393 F.3d 

337, 343, 346 (2d Cir. 2004); see also United States ex rel. Wilson v. Kellogg Brown 

& Root, Inc., 525 F.3d 370, 381 (4th Cir. 2008) (indicating, in dicta, that FCA 

permits waiver of right to pursue claim in federal court). 

CONCLUSION 

 The judgment of the district court is affirmed. 

 Entered for the Court 

 Paul J. Kelly, Jr. 

 Circuit Judge 

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