Equal Employment Opportunity Commission v. Allstate Insurance

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-2700

___________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Appellant

v.

ALLSTATE INSURANCE COMPANY

__________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No.2-01-cv-07042)

District Judge: Honorable Ronald L. Buckwalter

___________

Argued January 14, 2015

Before: HARDIMAN, SCIRICA and BARRY,

Circuit Judges.

(Filed: February 13, 2015)

Paul D. Ramshaw [Argued]

Equal Employment Opportunity Commission

131 M Street, N.E.

Washington, DC 20507

C. Felix Miller

Equal Employment Opportunity Commission

1222 Spruce Street, 8th Floor

St. Louis, MO 63101

Iris A. Santiago-Flores

Equal Employment Opportunity Commission

801 Market Street, Suite 1300

Philadelphia, PA 19107

John V. Gorman

Coleen M. Meehan

Morgan, Lewis & Bockius

1701 Market Street

Philadelphia, PA 19103

Attorneys for Plaintiff-Appellant

Donald R. Livingston [Argued]

Akin, Gump, Strauss, Hauer & Feld

1333 New Hampshire Avenue, N.W., Suite 400

Washington, DC 20036

Katherine M. Katchen

Akin, Gump, Strauss, Hauer & Feld

2001 Market Street

Two Commerce Square, Suite 4100

Philadelphia, PA 19103

2

Richard C. Godfrey

Jordan M. Heinz

Sallie G. Smylie

Kirkland & Ellis

300 North LaSalle Street

Chicago, IL 60654

Erica Zolner

Kirkland & Ellis

601 Lexington Avenue

New York, NY 10022

Attorneys for Defendant-Appellee

Rae T. Vann

Norris, Tysse, Lampley & Lakis

1501 M Street, N.W., Suite 400

Washington, DC 20005

Attorney for Amici Curiae in Support of Defendant-

Appellee

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

This appeal comes to us following a summary

judgment entered by the United States District Court for the

Eastern District of Pennsylvania in favor of Allstate Insurance

Company. In 1999, Allstate decided to reorganize its business

and terminate the at-will employment contracts of some 6,200

sales agents, offering them the opportunity to work as

independent contractors. As a condition of becoming

independent contractors, agents were required to sign a

3

release waiving existing legal claims against Allstate. The

Equal Employment Opportunity Commission sued Allstate,

claiming that the company violated federal antiretaliation

laws. The District Court disagreed and the EEOC appealed.

We will affirm.

I

As the District Court rightly noted, the history of this

case is “lengthy and convoluted.” Romero v. Allstate Ins. Co.,

1 F. Supp. 3d 319, 332 (E.D. Pa. 2014). We won’t repeat that

history in full because it is so thoroughly explained in Judge

Buckwalter’s tour de force in Romero and in his opinion now

under review. See Romero v. Allstate Ins. Co. (EEOC), 3 F.

Supp. 3d 313 (E.D. Pa. 2014). Instead, we shall summarize

the facts relevant to this appeal.

A

Over the past thirty years, Allstate has changed the

way it sells insurance. In the early 1980s, agents worked out

of Sears stores or company-owned offices under an

employment contract designated R830. Allstate introduced

the Neighborhood Office Agent Program in 1984, purportedly

because it faced “flat productivity and the aggressive use of

local independent contractor sales agents by its competitors.”

Allstate Br. 7. New agents hired pursuant to the

Neighborhood Program signed a contract designated R1500,

while existing agents had the choice of transferring to that

contract or continuing their employment under the R830

contract. The Neighborhood Program allowed agents to

secure their own office space, manage their own expenses,

and invest money in their agencies; it did not give them

transferable interests in their accounts, however, which

remained the property of Allstate. Under both the R830 and

R1500 contracts, Allstate agents were at-will employees and

4

were not entitled to any severance pay in the event that they

were “terminated under the terms of any group

reorganization/restructuring benefit plan or program[.]”

Romero, 1 F. Supp. 3d at 336, 397–98.

In 1990, the company introduced a third business

model, the Exclusive Agency Program, pursuant to which all

new Allstate agents worked as independent contractors under

a contract called R3001. In that capacity, Allstate agents had

transferable property interests in their books of business and

earned higher commissions than the R830 and R1500

employee agents, but they were neither reimbursed for office

expenses nor provided employee benefits. Existing employees

had the opportunity to apply to convert to independent

contractor status as part of the Exclusive Agency Program,

but they received no conversion bonus and had to repay any

outstanding office expenses advanced by Allstate. They did,

however, gain property rights in the accounts they serviced as

employee agents, which became transferable after five years.

According to Allstate, the Exclusive Agency Program

emerged as the company’s most productive business model.

Meanwhile, a settlement between Allstate and the Internal

Revenue Service required Allstate to more closely supervise

the operations of its Neighborhood Program agents in order to

preserve their status as employees for tax purposes.

Concerned about the inefficiency of running several different

agency programs, Allstate decided to shift completely to the

independent contractor model and abandon the R830 and

R1500 programs. Accordingly, in November 1999, the

company announced its Preparing for the Future Group

Reorganization Program, pursuant to which some 6,200

employee agents would be terminated the following year.

5

In connection with their termination, the employee

agents were offered four choices: (1) conversion to

independent contractor status (the Conversion Option); (2)

$5,000 and an economic interest in their accounts, to be sold

by September 2000 to buyers approved by Allstate (the Sale

Option) (3) severance pay equal to one year’s salary (the

Enhanced Severance Option); or (4) severance pay equal to

thirteen weeks’ pay (the Base Severance Option). Employees

who chose the Conversion Option received a bonus of at least

$5,000, were not required to repay any office-expense

advances, and acquired transferable interests in their business

two years after converting. All employees who chose not to

convert and left the company were bound by noncompetition

covenants in the original R830 and R1500 contracts.

Allstate required those who selected any of the first

three options to sign a release of all legal claims against the

company related to their employment or termination,

including discrimination claims arising under Title VII of the

Civil Rights Act of 1964, the Age Discrimination in

Employment Act (ADEA), and the Americans with Disabilities

6

Act (ADA).1 The Release covered only claims that had

accrued by the time the terminated employees signed it, not

1

The Release stated:

In return for the consideration that I am

receiving under the Program, I hereby release,

waive, and forever discharge Allstate Insurance

Company, its agents, parent, subsidiaries,

affiliates, employees, officers, shareholders,

successors, assigns, benefits plans, plan

administrators, representatives, trustees and

plan agents (“Allstate”), from any and all

liability, actions, charges, causes of action,

demands, damages, entitlements or claims for

relief or remuneration of any kind whatsoever,

whether known or unknown, or whether

previously asserted or unasserted, stated or

unstated, arising out of, connected with, or

related to, my employment and/or the

termination of my employment and my R830 or

R1500 Agent Agreement with Allstate, or my

transition to independent contractor status,

including, but not limited to, all matters in law,

in equity, in contract, or in tort, or pursuant to

statute, including any claim for age or other

types of discrimination prohibited under the

Age Discrimination in Employment Act of

1967, Title VII of the Civil Rights Act of 1964,

the Americans With Disabilities Act, the

Employee Retirement Income Security Act

(“ERISA”), the Illinois Human Rights Act, and

the West Virginia Human Rights Act as those

acts have been amended, or any other federal,

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future claims, and it did not bar them from filing charges with

the EEOC, which many did. Almost all the terminated

employee agents signed the Release, and thousands of them

chose the Conversion Option.

B

Despite Allstate’s efforts to avoid litigation, several

former employee agents filed individual and putative class

actions in the District Court seeking to invalidate the Release

and alleging discriminatory discharge, retaliation, ERISA

violations, breach of contract, and breach of fiduciary duty.

Romero, 1 F. Supp. 3d at 358. The EEOC filed a civil action

of its own that sought a declaratory judgment invalidating the

Release on the ground that Allstate illegally retaliated against

its employee agents by allowing them to continue their

careers with the company only if they waived any

discrimination claims. Id. The District Court granted

summary judgment to Allstate in both cases, 2007 WL

state, or local law or ordinance or the common

law. I further agree that if any claim is made in

my behalf with respect to any matter released

and waived above, I hereby waive any rights I

may have with respect thereto and agree not to

take any payments or other benefits from such

claim. I understand that this release and waiver

does not apply to any future claims that may

arise after I sign this Release or to any benefits

to which I am entitled in accordance with any

Allstate plan subject to ERISA by virtue of my

employment with Allstate prior to my

employment termination date.

App. 379.

8

1811197 (E.D. Pa. June 20, 2007), but we vacated those

rulings because they were inadequately reasoned and

insufficiently supported by evidence in the record, 344 F.

App’x 785 (3d Cir. 2009) (per curiam). We remanded and

ordered that the cases be reassigned to a different district

judge and that the parties be permitted to conduct further

discovery. Id. at 788, 790.

On remand, the district judge to whom the cases were

reassigned consolidated the cases for administrative purposes

and heard new motions for summary judgment. Romero, 1 F.

Supp. 3d at 360. In an opinion concerning the employee

agents’ claims, the District Court granted Allstate summary

judgment in part but held that trial was needed to determine

whether the Release was signed knowingly and voluntarily

and whether it was unconscionable. Romero, 1 F. Supp. 3d at

419. In a separate opinion, the District Court granted Allstate

summary judgment in the Commission’s retaliation suit.

EEOC, 3 F. Supp. 3d at 316. The District Court rejected each

of the Commission’s theories of retaliation, holding that

Allstate’s requirement that agents choosing the Conversion

Option waive their claims was not facially retaliatory because

the policy did not discriminate on the basis of any protected

trait, id. at 326; and that Allstate had not specifically

retaliated against agents who spurned the Release because,

among other reasons, refusing to sign a release did not

constitute “protected activity” under the antiretaliation

statutes, id. at 329–30.2 The EEOC filed this timely appeal.

2

The Court also rejected theories of “anticipatory

retaliation,” EEOC, 3 F. Supp. 3d at 334–35, and coercion, id.

at 336; see 42 U.S.C. § 12203(b). The Commission conceded

at oral argument that these claims are not at issue on appeal.

9

II

The District Court had subject matter jurisdiction

under 28 U.S.C. §§ 1331 and 1345. Our jurisdiction is based

on 28 U.S.C. § 1291.3

Exercising plenary review over the District Court’s

summary judgment, we will affirm only if, viewing “the

underlying facts and all reasonable inferences therefrom in

the light most favorable to the party opposing the motion,” we

conclude that a reasonable jury could not rule for the

nonmoving party. Blunt v. Lower Merion Sch. Dist., 767 F.3d

247, 265 (3d Cir. 2014) (quoting Pa. Coal Ass’n v. Babbitt,

63 F.3d 231, 236 (3d Cir. 1995)).

III

Title VII, the ADEA, and the ADA proscribe

discrimination in employment based on several personal

characteristics. See 42 U.S.C. § 2000e-2(a) (race, color,

religion, sex, national origin); 29 U.S.C. § 623 (age); 42

3

The District Court’s summary judgment was an

appealable “final decision” despite the pendency of the

Romero matter because that case was consolidated with the

EEOC’s action for administrative purposes only. See Romero,

1 F. Supp. 3d at 360. Although we follow a “case-by-case

approach” in determining whether a final order in one of

multiple consolidated cases is immediately appealable,

Bergman v. City of Atlantic City, 860 F.2d 560, 566 (3d Cir.

1988), our precedents indicate that immediate appeal in one

case is appropriate when the cases have not been

“consolidated for discovery and trial or for all purposes,” id.;

see Bogosian v. Gulf Oil Corp., 561 F.2d 434, 441 (3d Cir.

1977).

10

U.S.C. § 12112 (disability). They also prohibit employers

from retaliating against employees who oppose or complain

about discriminatory treatment. See Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53 (2006). The antiretaliation

provisions “are nearly identical,” and “precedent interpreting

any one of these statutes is equally relevant to interpretation

of the others.” Fogleman v. Mercy Hosp., Inc., 283 F.3d 561,

567 (3d Cir. 2002). Employers may not “discriminate against

any individual because such individual has opposed any act or

practice made unlawful by [the employment-discrimination

statutes] or because such individual made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing” under the employment-discrimination

statutes. 42 U.S.C. § 12203(a) (ADA); see also 42 U.S.C.

§ 2000e-3(a) (Title VII); 29 U.S.C. § 623(d) (ADEA). A

prima facie case of illegal retaliation requires a showing of

“(1) protected employee activity; (2) adverse action by the

employer either after or contemporaneous with the

employee’s protected activity; and (3) a causal connection

between the employee’s protected activity and the employer’s

adverse action.” Fogleman, 283 F.3d at 567–68 (quoting

Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir.

1997)).

The EEOC offers a few reasons why we should hold

that Allstate unlawfully retaliated against its terminated

employee agents. First, the Commission contends that the

Release does not fall within the well-established rule that

employers can require releases in exchange for post-

termination benefits. EEOC Br. 21–24. Second, it argues that

Allstate’s conduct was per se retaliatory because the company

“withh[e]ld a privilege of the employees’ employment—the

offer in the conversion option to continue their careers as

Allstate agents—if they refused to release all their claims.”

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Id. at 20. Alternatively, the EEOC claims Allstate retaliated

against the employee agents who refused to sign the Release

by denying them the option to continue their careers with the

company as independent contractors. According to the

Commission, the holdouts’ refusal to waive their claims

constituted “protected opposition activity” that prompted

Allstate to withhold the Conversion Option, an adverse

employment action. Id. at 32–35. We first address the general

validity of agreements like Allstate’s Release before turning

to the Commission’s two theories of retaliation.

A

It is hornbook law that employers can require

terminated employees to release claims in exchange for

benefits to which they would not otherwise be entitled. See,

e.g., Mark A. Rothstein et al., 2 Employment Law § 9.22 (5th

ed. 2014). Nothing in the employment-discrimination statutes

undermines this rule—in fact, Congress enacted detailed

requirements governing employee releases of ADEA claims

in the Older Workers Benefit Protection Act of 1990

(OWBPA). 29 U.S.C. § 626(f); see Oubre v. Entergy

Operations, Inc., 522 U.S. 422, 426–27 (1998). Title VII and

ADA claims are likewise subject to waiver by terminated

employees. See Alexander v. Gardner-Denver Co., 415 U.S.

36, 52 (1974) (“[P]resumably an employee may waive his

cause of action under Title VII as part of a voluntary

settlement[.]”); Rivera-Flores v. Bristol-Myers Squibb

Caribbean, 112 F.3d 9, 12 (1st Cir. 1997) (“We conclude that

such releases are permissible under the ADA[.]”). The EEOC

concedes, as it must, the legality of such releases. EEOC Br.

17, 20–21, 23; Reply Br. 1, 13.

But even when particular requirements have not been

imposed by statutes like the OWBPA, releases can be invalid

12

for various reasons. For example, they must be knowingly

and voluntarily signed4 and cannot waive future claims.5 In

addition, an employee who signs a release must receive

consideration in return. See, e.g., 29 U.S.C. § 626(f)(1)(D);

Long v. Sears Roebuck & Co., 105 F.3d 1529, 1538 (3d Cir.

1997); Rothstein, supra, § 9.22.

The EEOC begins by arguing that the well-settled rule

that releases of claims are generally valid does not apply to

the situation presented in this appeal. EEOC Br. 21. The

Commission’s argument goes like this: the only consideration

adequate for a release of claims is “severance benefits,” and

Allstate’s offer of an option to sell insurance as an

independent contractor does not qualify because the employee

agents “were not terminated in any normal sense.” Id. at 22–

23 (“[T]he conversion option was not a ‘severance’ benefit,

but rather the opportunity [for the agents] to continue their

Allstate careers.”). There are a few problems with the

Commission’s postulate.

For starters, the notion that the Conversion Option was

inadequate consideration for the Release is remarkably

4

See Gardner-Denver, 415 U.S. at 52 n.15. This issue

remains pending in the Romero case. See supra Section I-B.

5

See Adams v. Philip Morris, Inc., 67 F.3d 580, 585

(6th Cir. 1995) (“An employer cannot purchase a license to

discriminate.”); Rothstein, supra, § 9.22; see, e.g., Gardner-

Denver, 415 U.S. at 51–52 (“[A]n employee’s rights under

Title VII are not susceptible of prospective waiver.”).

Allstate’s Release did not purport to waive future claims. See

App. 379 (“I understand that this release and waiver does not

apply to any future claims that may arise after I sign this

Release[.]”).

13

counterintuitive. The EEOC concedes that the Sale Option

and the Enhanced Severance Option, both of which also

required the employees to sign the Release, were valid. Id. at

34–35. It nevertheless contends that the Conversion Option—

which was chosen by the vast majority of the terminated

agents—was illegal. According to the Commission, Allstate

could have complied with the antiretaliation statutes by

simply firing all its employee agents for good, instead of

giving them the opportunity to sell Allstate insurance in a

different capacity. We are confident that federal laws

designed to protect employees do not require such a harmful

result.

Second, the Commission’s argument that the

Conversion Option was inadequate consideration for the

Release is contrary to the undisputed facts of this case. The

EEOC suggests that Allstate gave the terminated agents

essentially nothing in exchange for releasing their claims. See

EEOC Br. 23–24 (“[T]he Program, instead of offering them

severance benefits, required them to release all their claims

against the company in order to continue performing the same

services for Allstate that they had been performing for

decades.”). In fact, each employee agent who signed the

Release did so in exchange for something “in addition to

anything of value to which the individual already [was]

entitled[.]” § 626(f)(1)(D). The agents were entitled to neither

continued employment (because they were at-will employees

under the R830 and R1500 contracts) nor severance pay

(because they were terminated pursuant to a group

reorganization program). Moreover, even though Allstate

allowed employee agents to convert to independent-

contractor status during the decade preceding the 2000

restructuring, the Conversion Option was significantly more

advantageous because it: (1) offered guaranteed conversion,

14

whereas Allstate had previously retained discretion to deny

conversion; (2) came with a bonus; (3) excused repayment of

any outstanding office-expense advances; and (4) gave the

converting agent a transferable interest in his or her business

after two years, rather than five. See id.; Allstate Br. 39. Thus,

it is clear that Allstate’s Conversion Option offered

terminated employee agents something of value to which they

were not otherwise entitled.

Finally, the EEOC admits that it knows of not “a single

decision holding that it is unlawful for an employer to require

its employees to release all their claims in order to continue

working for the company.” EEOC Br. 25. Nevertheless, it

claims that Allstate is similarly bereft of authority supporting

its position—except for one case, Isbell v. Allstate Insurance

Co., 418 F.3d 788 (7th Cir. 2005), which it accuses Allstate

of misreading. EEOC Br. 25. There, Doris Isbell was

terminated pursuant to Allstate’s reorganization plan and

refused to sign the Release, opting for the Base Severance

Option. Isbell, 418 F.3d at 791–92. She sued Allstate for

retaliation, but the Seventh Circuit rejected her claims. Id. at

792–93. The EEOC rightly notes that Isbell does not carry the

day for Allstate here insofar as the Seventh Circuit rejected

Isbell’s retaliation claims on the ground that she was not

terminated for discriminatory reasons, which is inapposite to

the Commission’s claim that Allstate’s contingent offer of

conversion was discriminatory retaliation. See id. at 793;

EEOC Br. 26–27. Nonetheless, we note that the Seventh

Circuit expressly acknowledged Isbell’s retaliation theory,

which mirrored the EEOC’s theory here, and found it lacking.

See Isbell, 418 F.3d at 797 (“Allstate did not retaliate against

Isbell when it refused to hire her [as an independent

contractor] after she refused to sign a release of liability.”).

15

Like Isbell, the EEOC here fails to articulate any good

reason why an employer cannot require a release of

discrimination claims by a terminated employee in exchange

for a new business relationship with the employer. We

acknowledge the Commission’s concerns about the prospects

of employers trading releases for new business opportunities

and terminated employees facing “financial pressure” when

offered such a deal. EEOC Br. 32. But the EEOC fails to

explain why this financial pressure is more offensive to the

antiretaliation statutes than the pressure one is bound to feel

when required to sign a release in exchange for severance

pay.6 In sum, we are not persuaded by the Commission’s

efforts to arbitrarily limit the forms of consideration

exchangeable for a release of claims by a terminated

employee.

B

Having determined that Allstate’s conduct conformed

with the settled rule that employers can exchange

consideration for releases of claims, it is unsurprising that the

Commission’s theories of retaliation are invalid. The

Commission posits that Allstate violated the antiretaliation

statutes first by creating a policy that employee agents who

6

The Commission also fails to show that its nightmare

scenario—employers using a cycle of layoffs, releases, and

rehiring to immunize themselves from suit—is a valid

concern. See EEOC Br. 24–25. There is no indication that

American employers have done or will do this to insulate

themselves from the employment-discrimination laws,

probably because such schemes would destroy employee

morale, compromise business goodwill, and serve little

economic purpose.

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refused to sign the Release would not be permitted to

continue their Allstate careers, and then by enforcing this

policy and actually withholding the Conversion Option from

those agents. Under both theories, the EEOC alleges that the

“protected employee activity” in question was the refusal to

sign the Release and the associated “adverse action by the

employer” was Allstate’s withdrawal of the Conversion

Option.7 Fogleman, 283 F.3d at 567. In fact, the EEOC has

established neither protected activity nor an adverse action.

The antiretaliation statutes identify two forms of

protected employee activity: “oppos[ing] any act or practice

made unlawful by” the employment-discrimination laws and

initiating or “participat[ing] in any manner in an

investigation, proceeding, or hearing under” those laws. E.g.,

42 U.S.C. § 12203(a). The Commission argues that refusing

to sign a release constitutes opposition to unlawful

discrimination, but we disagree. In our view, such inaction

does not communicate opposition sufficiently specific to

qualify as protected employee activity. See EEOC v.

SunDance Rehab. Corp., 466 F.3d 490, 501 (6th Cir. 2006)

(expressing skepticism that declining to sign a release could

7

The Commission occasionally wavers by suggesting

that the real adverse action was the termination of the

employee agents—or at least that their termination was

functionally equivalent to withdrawal of the Conversion

Option. See, e.g., EEOC Br. 35. We recognize that dismissing

an employee qualifies as “adverse action” in common

parlance, but the relevant action for retaliation purposes was

the denial of conversion to the agents who refused to sign the

Release.

17

be protected activity); see also Barber v. CSX Distrib. Servs.,

68 F.3d 694, 702 (3d Cir. 1995) (“A general complaint of

unfair treatment does not translate into a charge of illegal age

discrimination.”). Because Allstate’s Release barred its

signatories from bringing any claims against Allstate

concerning their employment or termination, employee agents

who refused to sign it might have done so for any number of

reasons unrelated to discrimination. Indeed, as Allstate notes,

the plaintiffs in the Romero case brought claims for breach of

contract and breach of fiduciary duty. Allstate Br. 51.

Accordingly, the EEOC cannot show that any adverse action

taken by Allstate was triggered by opposition to unlawful

discrimination, dooming its retaliation case at the outset.

Even had the Commission been able to establish

protected activity, its argument would fail for lack of an

adverse employment action. As we have mentioned, the

terminated agents were not entitled to convert to independent

contractor status. See supra Section III-A. And the

Commission has cited no legal authority for the proposition

that an employer commits an adverse action by denying an

employee an unearned benefit on the basis of the employee’s

refusal to sign a release. There is significant support,

meanwhile, for the opposite proposition. See SunDance, 466

F.3d at 502 (collecting cases).

The EEOC leans heavily on EEOC v. Board of

Governors, 957 F.2d 424 (7th Cir. 1992), but that case only

clarifies the Commission’s failure in this case to satisfy the

two essential retaliation elements just discussed. In Board of

Governors, the Seventh Circuit invalidated a provision of a

collective bargaining agreement that suspended an

employee’s contractual right to an internal grievance

proceeding as soon as the employee initiated a judicial or

18

administrative proceeding concerning his grievance. Id. at

426–27. The Court held that the CBA provision violated the

ADEA’s antiretaliation provision because it authorized the

employer to strip an employee of a “contractual right” and

adversely alter a “condition of his employment” whenever the

employee sought relief under the ADEA in an external forum.

Id. at 430. In that case, the Commission identified a clear

protected activity (i.e., initiating a discrimination charge in an

external forum) and paired it with an employer action that

deprived employees of something to which they were entitled

(i.e., suspending the right to internal grievance proceedings).

The EEOC fails to muster the same showing here, which

makes all the difference.

IV

In offering each of its employee agents the Conversion

Option, Allstate followed the well-established rule that

employers can require terminated employees to waive

existing legal claims in order to receive unearned post-

termination benefits. The EEOC has neither given us reason

to craft an exception to this rule nor articulated a valid

retaliation claim under the relevant statutes. We therefore

hold that Allstate did not violate the federal antiretaliation

laws by requiring that employee agents sign the Release in

order to avail themselves of the Conversion Option.

Accordingly, we will affirm the judgment of the District

Court.

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