Appendix — Isbell v. Allstate Insurance Insurance Co Co (No. 05-1010)

Supreme Court brief2005

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Text

studied the relationship between age and productivity.

Although Isbell reports that the study showed that agents in

younger age groups produced "slightly more new business,"

Isbell failed to note the heading to that page of the study --

“overall, there is a weak relationship between age and

production." (Emphasis added.) Isbell also failed to note that

the study concluded that "focusing only on ‘high potential’

hires, there is little relationship between age and production."

Finally, Isbell failed to cite a conclusion of the study "age

should not play a role in recruiting or hiring decisions."

Taken together, this evidence does not provide a

"convincing mosaic" from which a jury could infer

discriminatory intent on the part of Allstate. As the district

court pointed out, there was no evidence that the studies were

used by the decisionmakers involved in the decision to

eliminate the employee-agent program. Fuka v. Thomson

r ., 82 F.3d 1397, 1403 7th Ci

Isbell's claim that Allstate discriminated against older

workers when it eliminated the employee-agent position has

no merit. She seeks to magnify the age issue by focusing only

on one job category without recognizing the entirety of

Allstate's restructuring effort — eliminating an employment

position and offering those affected another position with the

Company. As a consequence, every employee in that position

lost his job, regardless of age. n4 That was not the sum of

Allstate's restructuring program, however. Each and every

one of the employee agents, regardless of age, was offered a

new opportunity with the Company. Allstate was entitled to

summary judgment on Isbell's claim of age discrimination.

n4 This is also the reason Isbell cannot succeed in showing

discrimination via the indirect McDonnell Douglas method.

That method requires Isbell to show (among other things)

that similarly situated persons under forty were treated better

than she was. That is not possible here. Every person

similarly situated to Isbell, over forty or under forty, was

treated precisely the same way -- their position with the

Company was terminated and they were offered a choice of

options including a new position with Allstate.

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3. Isbell’s ERISA claim.

Isbell claims that Allstate violated § 510 of ERISA when it

eliminated her position [*796] because it did so, according

to Isbell, for the purpose of preventing her from taking

advantage of vested health benefits. Section 510 makes it

"unlawful for any person to discharge, fine, suspend, expel,

discipline, or discriminate against a participant or beneficiary

for exercising any right to which he is entitled under the

provisions of an employee benefit plan... ." 29 U.S.C. §

1140.

The loss of benefits to an employee as a result of an

employer's action is not, by itself, sufficient to prove a

violation of § 510. The employer must have the specific

intent to deprive an employee of his plan rights. Lindemann

v. Mobil Oil Corp., 141 F.3d 290, 295 (7th Cir. 1998). No

violation will arise where the deprivation was simply the

consequence of a decision that had the incidental effect of

affecting an employee's a Id. (quoting Meredith v.

Navistar Int'] Transp. Corp., 935 F.2d 124, 127 (7th Cir.

1991)). “The plaintiff must ultimately show that a desire to

frustrate attainment or enjoyment of benefit rights

contributed toward the employer's decision and can avoid

summary judgment only if the materials properiy before the

district court construed sympathetically, allow for such a

conclusion." Zeumer v. General Motors Corp., 34 F.3d 542,

550 (7th Cir, 1994).

As above, a plaintiff can show a violation of § 510 pursuant

to the direct or indirect method. Isbell has no direct or

circumstantial evidence that Allstate eliminated the

employee-agent position for the purpose of depriving her

(and the other employee agents) of her pension and health

care benefits. She must proceed, therefore, under the indirect

method. Such method utilizes the McDonnell Douglas

burden-shifting analysis.

A plaintiff makes out a prima facie under § 510 where she

can show "that [she] (1) belongs to the protected class; (2)

was qualified for [her] job position; and (3) was discharged

or denied employment under circumstances that provide

some basis for believing that the prohibited intent to

retaliate” or to prevent the use of benefits was present.

Grottkau v. Sky Climber, Inc., 79 F.3d 70, 73 (7th Cir. 1996);

Lindemann, 141 F.3d at 295. In a § 510 case, however, this

court need not “determine whether a plaintiff has established

a prima facie case where a defendant has advanced a

legitimate, nondiscriminatory reason for its action.” Jd at

296.

In this case Allstate has offered legitimate, nondiscriminatory

reasons for eliminating the employee-agent position and

moving to an all-independent contractor agent force. Chief

among these was the higher productivity of independent

contractors (and, notably, the even higher productivity for

former employee agents who had voluntarily converted to

independent contractors). The independent contractors were

paid higher commissions than employee agents and no doubt,

like many companies, Allstate believed that paying its sales

force primarily through commissions spurs the salesmen to

sell more. This is a legitimate business reason for Allstate's

decision. Allstate was entitled to summary judgment.

B. Allstate's Appeal

Allstate appeals the district court's conclusion that while

Schneider had breached his agreement with the Company

(the Release), Allstate was not entitled to damages arising

from that breach. Schneider wanted to have his cake and eat

it too. In spite of his signing the Release he sued under the

ADEA. In the meantime, he took full advantage of Option.

Two by selling his book and retaining the bonus (and the

benefit of the forgiven loan). Allstate claims damages in the

amount of $ 126,000: [*797] $ 120,000 for the economic

interest in his book of business Schneider was able to sell; $

5,000 for the bonus he was given for signing the Release; and

$ 1,000 for the forgiveness of an advance Allstate had given

him. Allstate does not seek attorney's fees.

The Release signed by Schneider provided that the emplovee

"hereby releases, waives, and forever discharges Allstate . . .

from any and all liability, actions, charges, causes of action,

demands, damages, entitlements or claims for relief or

remuneration of any kind whatsoever, . . . including .. . any

claim for age or other types of discrimination prohibited

under the [ADEA, Title VII, the ADA, and ERISA].” Allstate

and the district court consider the Release a covenant not to

sue and consequently, Allstate argues Schneider breached the

covenant when he sued Allstate.

We disagree. The Release does not amount to a covenant not

to sue, but rather is a release from liability for any potential

past claims. While the Release gives Allstate a defense that

prevents Schneider from winning, the Release does not

contain plain language that amounts to an agreement not to

sue. As the Eighth Circuit recently noted, "[a] release of

claims and a covenant not to sue serve different purposes "

Thomforde y. Int'l Bus. Machs. Corp., 406 F.3d 500, 503 (8th

Cir. 2005). n5 The latter does not result in breach upon the

filing of a suit. Instead, it provides Allstate with an effective

affirmative defense should a claim be raised. Because the

Release was a release of claims and not a covenant not to sue,

Schneider did not breach the Release with his suit. Allstate

received the benefit of its bargain -- an affirmative defense.

n6 Summary judgment should have been granted in favor of

Schneider on Allstate's claim of breach.

n5 In Thomforde, an engineer was fired as part of a reduction

in force and signed a document titled "General Release and

Covenant Not to Sue." Zhomforde, 406 F.3d at 501. Similar

to the Release in this case, that agreement contained a

provision releasing IBM from claims arising under the

ADEA. /d. The IBM agreement, however, went on to include

another paragraph stating that "you agree that you will never

institute a claim of any kind against IBM .. . including, but

not limited to, claims related to your employment with IfsM

or the termination of that employment .. . ." /d at 501-92.

The court and the parties considered the first provision a

release and the second a covenant not to sue.

n6 This does not mean, of course, that a party that is the

beneficiary of release of liability is without all remedies -- a

party that brings a suit invoking claims covered by a release

may be doing so in bad faith (and subject to paying the

attorneys’ fees of the party covered by the release). In this

case, however, Allstate admits that it did not distinguish

between the cost of litigating Isbell's claim (which was not

subject to a release of liability) and Schneider's claim.

II.

Allstate eliminated the positions of 6,400 employees,

regardless of their age. It then turned around and offered

those same employees, regardless of age, new opportunities

with the Company. This was not discrimination and Allstate

did not retaliate against Isbell when it refused to hire her for

one of these new opportunities after she refused to sign a

release of liability. The district court did not err in granting

Allstate summary judgment on Isbell's claims of retaliation

and discrimination as well as Isbell's ERISA claim.

The district court erred, however, insofar as it granted

summary judgment to Allstate on its counterclaim of breach

of contract by Schneider. The decision of the district court to

that effect is, therefore, [*798] REVERSED and it is

ordered to enter judgment on that claim in favor of

Schneider.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DORIS ISBELL,

Plaintiff

DEC 16 2003

v. CLERK U.S.

DISTRICT COURT

SOUTHERN DISTRICT

OF ILLINOIS

ALLSTATE INSURANCE CO., EAST ST. LOUIS

OFFICE

Defendant. No. 01-CV-0252-DRH

AMENDED MEMORANDUM AND ORDER

Herndon, District Judge:

I. Introduction

Doris Isbell and James Schneider had been working for

Allstate Insurance Company ("Allstate") for more than 14

and 15 years respectively as employee insurance agents when

Allstate, as part of a restructuring of its sales force, abolished

their job classification. In connection with that restructuring,

Isbell and Schneider filed the instant lawsuit alleging Allstate

unlawfully discriminated against them in violation of the Age

Discrimination in Employment Act of 1967 ("ADEA"), 29

U.S.C. §§621 et seq. and the Employee Retirement Income

Security Act ("ERISA"), 29 U.S.C. §§1140 et seq. (Isbell's

Fourth Amended Complaint, No. 01-CV-0252, Doc. 48,

Schneider's Complaint, No. 01-CV-0655, Doc. 1). Both

Plaintiffs further claim Allstate unlawfully retaliated against

them in violation of the Americans with Disabilities Act

("ADA"), 42 U.S.C. §§12101 et seq., Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §2000e, ADEA, and ERISA.

nl On Defendant's motion for summary judgment directed at

Isbell's Fourth Amended Complaint (Doc. 48), the Court

dismissed Isbell's claims for retaliation under both federal

and state law (Doc. 177).

Now before this Court is Defendant's combined motion for

summary judgment (Doc. 187). Plaintiffs oppose this motion

(Doc. 190). Plaintiffs also filed a motion to amend and

supplement their opposition (Doc. 269). Defendant opposes

this motion (Doc. 280). For the reasons set forth below, the

Court grants in part and denies in part Defendant's motion for

summary judgment and grants Plaintiffs’ motion to

supplement their opposition.

Il. Facts n2

n2 The parties filed a joint statement of undisputed material

facts that was extremely brief (Doc. 189). In addition,

Plaintiffs filed a statement of contested material facts in

paragraph form, which contained citations to evidentiary

materials in the record (Doc. 191). Defendant responded in a

separate paper that addressed each paragraph of Plaintiffs’

statement with corresponding cites to the record (Doc. 247).

The following account of the material facts of this case is

taken from this Court's March 28, 2003 order (Doc. 177), the

parties’ joint statement, from the facts asserted by Plaintiffs

which Defendant does not deny, and from the documents

filed by both parties in connection with this motion.

Today Allstate markets its insurance primarily through a

nationwide network of approximately 11,000 exclusive agent

independent contractors (Def.'s Ex. 1 at P2). n3 The structure

of the Allstate agent network, however, has evolved over the

years to allow the company to adapt to the

changing marketplace for insurance (/d.)

n3 All exhibits filed by Defendant in connection with the

motion will be referred to as "Def.'s Ex. _." Similarly, all

exhibits filed by Plaintiffs in connection with this motion will

be referred toas"Plis.' Ex. _.”

Prior to 1984, Allstate sold its insurance products exclusively

through employee agents located in Sears retail stores or in

local sales offices known as “Neighborhood Sales Offices"

("NSO") (/d at P3). In 1984, Allstate introduced the

Neighborhood Office Agent Program ("NOA") in response to

flat productivity and the aggressive use of local independent

contractor sales agents by its competitors (/d. at P4). These

agents were accorded greater entrepreneurial discretion than

the NSO program until September 1998 when Allstate

agreed, after protracted negotiations with the Internal

Revenue Service, to exert more control over the NOA

program in order maintain the employee status of the

program for tax purposes (/d at P5).

In 1990, Allstate introduced the Exclusive Agency ("EA")

program (/d. at P6). Under the EA program, new agents were

typically employed under the R3000 contract-under which

they were employee agents for 18 months (/d.). After 18

months, if the agent met certain Allstate requirements as well

as final company approval, the agent was offered the R3001

EA contract to represent Allstate as an independent

contractor (/d. at P7). This program differed from Allstate's

other agent programs in several respects: (1) EA agents were

independent contractors, not at-will employees (/d. at P7); (2)

EA agents acquired an economic interest in the business that

they wrote as EA agents ("books of business") (/d. at P8); (3)

EA agents received a higher commission schedule (/d. at

P10); and (4) EA agents were not eligible to participate in

Allstate's employee benefits plan (/d. at P11).

By January 1999, Allstate's agent sales force had evolved

into at least six different programs, including (1) "R830 NSO

Agents"; (2) "R830 GA Agents"; (3) "R830 NOA Agents";

(4) "R1500 NOA Agents"; (5) "R3000 EA Agents"; and (6)

"R3001 EA Agents" (/d. at P16). In addition, Allstate's

relationship with each of these agent [*7] was governed by

at least four different written contracts: (1) the transitional

"Allstate R3000 Exclusive Agent Employment Agreement,”

otherwise known as the "R3000 Agreement"; (2) the

"Allstate R3001 Neighborhood Exclusive Agency

Agreement," otherwise known as the "R3001 Agreement";

(3) the "Allstate Agent Compensation Agreement," otherwise

known as the "R830 Agreement,"; (4) the "Agent

Employment Agreement," otherwise known as the "R1500

Agreement." (/d. at P17).

Allstate employed both Plaintiffs as employee insurance

agents under the latter two contracts. Plaintiff Isbell, a fifty-

four year old woman, worked for Allstate pursuant to an

"R1500" employment contract from October 12, 1985 until

June 30, 2000 (Doc. 189, P1). Similarly, Plaintiff Schneider,

a fifty year old man, worked for Allstate pursuant to an

"R830" contract from April 1984 until June 30, 2000 (Doc.

189, P2). For ail practical purposes, these contracts had

similar features, including a provision that Allstate could

terminate them at will (Doc. 177 at 3).

In November 1999, Allstate publicly announced that it was

launching a companywide "Preparing for the Future" Group

Reorganization Program ("Program") (Doc. 177 at 3). The

Program, which applied in Illinois, introduced a plan to

change the nature of its business relationship with those

persons who sold Allstate insurance (/d.). Essentially,

Allstate would no longer sell its insurance though employees,

who received company benefits, but would do so through a

network of exclusive independent contractors (/d.). As part of

this Program, Allstate announced that it would terminate all

of its approximately 6,400 employee agent contracts as of

June 30, 2000 (Doc. 189, P3). The termination decision

affected all employee agents across-the-board regardless of

age, productivity, performance, or any other criteria, and

regardless of whether they subsequently signed any release

(Def.'s Ex. 1, Attachment A).

As part of the Program, Allstate presented each affected

employee with written informatior. outlining four options for

its discontinued employee agent contracts, two of which

allowed the employee to continue selling Allstate insurance

as an independent contractor (Doc. 189, P4, Def.'s Ex. 1,

Attachment A). Each individual employee agent was then

given more than six months to select, in his or her sole

discretion, among the following options (Def.'s Ex. 1):

Option | ("Independent Contractor Option"): Under this

option, the terminated employee agent could chose to become

an independent contractor Exclusive Agent under an

R3001S/C contract. In exchange for a release of specific

claims, former agents who elected to become an independent

contractor Exclusive Agent also received the following

consideration and benefits, among others:

. The ability to enter into a new contractuai relationship with

Allstate;

. An opportunity to earn a transferable economic interest in

their book of business, including the portion previously

written as an employee agent, after only two years;

. Aconversion bonus of at least $ 5,000;

. Forgiveness of any debts from office expense allowance

advances (that otherwise would need to be repaid upon

termination);

. Higher commissions and participation in a stock bonus plan;

. Moving expenses if relocation was required; and

. The opportunity to grow their business and expand in new

ways including setting up local agency extensions and, if

qualified, expanding to satellite agency locations.

(/d. at P27(a)).

Option 2 ("Sale Option"): The terminated employee could

chose to become an independent contractor for a limited

period of time and receive the following consideration and

benefits, among others, in exchange for a release of specific

claims: \

. Receive the right to enter into an R3001S/C Agreement and

become an R3001 EA Agent;

. Receive a bonus payment of $ 5000;

. Have debt or OEA advances forgiven;

. Be relieved of certain lease and advertising obligations

incurred as an employee-agent;

. Acquire in only one month a transferable economic interest

in the business written while an employee-agent; and

. Receive the right to sell his or her book of business, after

one month's service as an R3001 EA Agent and prior to

August 1, 2000, to an Allstate-approved buyer and then

pocket the substantial sale proceeds.

(Id. at P27(b)).

Option 3 ("Enhanced Severance Option with Release"): the

terminated agent could choose to receive enhanced severance

benefits equal to one year's pay based upon the greater of the

1997 or 1998 year-end authorized compensation in

consideration and exchange for executing a release.

(Def.'s Ex. 1 at P27(c)).

Option 4 ("Base Severance Option Without Release"):

the terminated employee agent could chose not to sign a

release and retain any or all claims they might have against

Allstate, and receive base severance up to thirteen weeks.

(/d. at P27(d)). Schneider selected Option 2, the Sale Option

(Def.'s Ex. 5, Schneider Dep. at 97:25-98:7). Isbell selected

Option 4, Base Severance Option Without Release (Def.'s

Ex. 6, Isbell Dep. at 139:12-19).

Allstate also presented each employee agent, including Isbell

and Schneider, with a release, an Election Form-Release,

which purported to waive any right such employee might

have to sue Allstate, pursuant to, among other things, the

ADEA, Title VII, the ADA, and ERISA (Def.'s Ex. 3).

Allstate also gave each affected employee with information

that explained the implications of the Election Form-Release

and encouraged them to consult with an attorney prior to

signing it (Def.'s Ex. 1, Attachment B). In addition, Allstate

provided to each affected agent, including Isbell and

Schneider, the Age Discrimination in Employment

("ADEA") Waiver Information mandated by the Older

Workers Benefits Protection Act (Y"OWBPA") (Def.'s Ex. |,

Attachment D). z

In November or December 1999, Isbell and

Schneider attended a meeting to explain the Program in

Collinsville, Illinois (Def.'s Ex. 5, Schneider Dep. at 51:3-10;

Def.'s Ex. 6, Isbell Dep. at 109:17-24). The meeting included

a statement that all the agents’ employment was terminated,

but that over the next six months they could select one of the

four options described above (Doc. 177 at 4). Both Isbell and

Schneider admit that they understood that their positions

were terminated pursuant to the Program (Def.'s Ex. 6, Isbell

Dep. at 110:21-25, 112:12-18; Def.'s Ex. 4, Schneider EEOC

charge). They admit that their contracts were not singled out

for termination (Def.'s Ex. 6, Isbell Dep. at 149:7-9; Def.'s

Ex. 5, Schneider Dep. at 54:1-11), and that they understood

their contracts would terminate as of June 30, 2000,

regardless of whether they signed the Election Form-Release

(Def.'s Ex. 6, Isbell Dep. at 110:21-25; Def.'s Ex. 5,

Schneider Dep. at 88:14-17; 144:7-10; 145:24-146:2). It is

also undisputed that R830 and R1500 contracts of employee

agents over and under the age of 40 were terminated pursuant

to the Program (Def.'s Ex. 6, Isbell Dep. at 144: 13-15; Def.'s

Ex. 1 at P26).

Plaintiff Schneider, unlike Isbell, chose to sign the

Election Form-Release. Prior to signing, Schneider met with

an attorney, Charles Stegmeyer, who advised him not to sign

the release (Def.'s Ex. 5, Schneider Dep. at 64:1-22).

Notwithstanding his attorney's advice, Schneider signed the

release (Def.'s Ex. 5, Schneider Dep. at 85:5-8; 90:14-16). He

selected Option 2, the Sale Option. In exchange, Allstate

gave Schneider an economic interest in his book of business

which he promptly sold on May 11, 2000 for $ 120,000

(Def.'s Ex. 5, Schneider Dep. at 90:14-16, 97:25-98:17). In

addition, Allstate paid Schneider $ 5000 as additional

consideration for signing the release (Def.'s Ex. 5, Schneider

Dep. at 120:1-9). Allstate also forgave an outstanding

advance (Def.'s Ex. 5, Schneider Dep. at 119:12-25).

Schneider understood he had seven days to revoke the

release, but did not (Def.'s Ex. 5, Schneider Dep. at 102:6-

15). He also admits that Allstate fully performed its promises

in connection with his selection of Option 2 (Def.'s Ex. 5,

Schneider Dep. at 122:4-9). Schneider retained and/or spent

the financial benefits that he received in exchange for signing

the Election Form-Release (Def.'s Ex. 5, Schneider Dep. at

119:1-121:18; 129:21-130:2). In September 2000, Schneider

met with another attorney, Kevin Boyne, regarding the

Election Form-Release (Def.'s Ex. 5, Schneider Dep. at

125:8-10). Mr. Boyne told Schneider that the release did not

bar any claim for workers’ compensation that Schneider

wished to bring against Allstate (Def.'s Ex. 5, Schneider Dep.

at 70:6-18). Schneider then filed a workers' compensation

claim in September 2000 in which he recovered almost $

13,000 (Def.'s Ex. 5, Schneider Dep. at 70:9-71:10; Def.'s Ex.

12, Schneider's Workers' Compensation Settlement).

Thereafter, on December 14, 2000, Schneider filed an EEOC

charge alleging age discrimination and retaliation on (Def.'s

Ex. 4, Schneider's EEOC charge).

iil. Analysis

A. Summary Judgment Standard

Summary judgment is proper where the pleadings and

affidavits, if any, “show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law." _P. 56(c; ty.

UNUM Life Ins. Co, of Am., 223 F. 3d 543, 545 (7° Cir.

es v. Di ne a

ir. 1997)(citing Chelates ._ Citr 77 UV. 7,322

(1986). The movant bears the burden of establishing the

absence of factual issues and entitlement to judgment as a

matter of law. Wollin y. Gondert, 192 F.3d 616, 621-22 (7th

Cir, 1999). The Court must consider the entire record,

drawing reasonable inferences and resolving factual disputes

in favor of the non-movant. Schneiker v. Fortis Ins. Co., 200

F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland

Park, 195 F.3d 333, 337-38 (7th Cir. 1999).

In reviewing a summary judgment motion, the Court does not

determine the truth of asserted matters, but rather decides

whether there is a genuine factual issue for trial. EEOC v.

Sears, Roebuck & Co., 233 F.3d 432, 436 (7th Cir. 2000). No

issue remains for trial “unless there is sufficient evidence

favoring the non-moving party for a jury to return a verdict

for that party. If the evidence is merely colorable, or is not

sufficiently ppg; summary judgment may be pe 2

v. bb ., 477 42 91

Ed. 2d 202, 106 S. Ct. 2505 ¢ 1986). Accord Sevenmad v. Ci ity

of Elkhart, 87 F.3d 872, 880 (7th Cir. 1996), cert. denied,

519 U.S. 1055, 136 L 2 7 997);

Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir.

1994).

This standard should be "applied with added rigor" in

employment discrimination cases, in which intent ed

credibility are crucial issues. Webb v. Clyde L. Choat

Mental Health & Dev. Ctr..230 F.34991, 997 (7th Cit.

2000); Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir.

1999); King v. Preferred Technical Group, Inc., 166 F.3d

887, 890 (7th Cir. 1999). This standard reflects the

pronouncement that in employment discrimination cases,

which often involve issues of mctive and intent, summary

judgment must be approached with caution. Huhn v.

Koehring Co., 718 F.2d 239, 242 (7th Cir. 1983). Huhn relied

on an earlier case that recognized that, although summary

judgment is improper in employment discrimination cases

which involve the “weighing of conflicting indications of

motive and intent" where a plaintiff has no evidence of

discriminatory motive to “put on the scales for weighing,”

summary judgment is appropriate. /Z

B. Schneider's Claims for Retaliation

In his Complaint, Schneider claims that Allstate's actions

constituted retaliation in violation of four federal statutes:

ADEA, 29 U.S.C, §§ 621 et seg.; ERISA, 29 U.S.C. §§ 1140

et seqg.; Title VII, 42 U.S.C. § 2000e; and ADA, 42 U.S.C. §§

12101 et seg. (No. 01-CV-0655, Doc. 1, P24). Allstate now

moves for summary judgment on these claims because they

rest on the same theory of retaliation advanced by Plaintiff

Isbell and rejected by the Court in its March 28, 2003 Order

(Doc. 177).

In its March 28, 2003 Order, the Court found the "adverse

employment action of which [Isbell] complains was

effectuated by Defendant long before she engaged in any

protected activity." (Doc. 177 at 13). Moreover, Isbell "was

not treated differently from other similarly situated

employees. She was treated identically. The record is clear

that all of the over 6,000 Allstate employee agents were

terminated, and all were offered the same four options for

what would happen after Allstate eliminated the job

classification of ‘employee agent." (Doc. 177 at 13). Thus,

the Court held "the record is devoid of evidence sufficient to

demonstrate that Defendant subjected [Isbell] to an ‘adverse

employment action’ as a way for retaliating against her for

signing the waiver or filing an EEOC charge.” (Doc. 177 at

14).

Here, the Court finds that the undisputed facts in connection

with Schneider's retaliation claims weigh even more strongly

in favor of summary judgment than those in Isbell's case.

First, unlike Isbell who rests her retaliation claims, in part, on

her refusal to sign the Election Form-Release, Schneider

signed the Election Form-Release in April 2000 after

consulting with an attorney (Def.'s Ex. 5, Schneider Dep. at

59:8-15; 64:1-4; 76:2-4). Second, unlike Isbell, Schneider did

not file his EEOC charge until almost eight months after he

signed the Election Form-Release, almost seven months after

he sold his economic interest in the book of business for $

120,000, and almost three months after he successfully filed a

workers' compensation claim against Allstate (Def.'s Ex. 4,

Schneider's EEOC charge). Schneider has not demonstrated

why his claim is distinguishable from Isbell's. Under these

facts, and for the reasons set forth in this Court's March 28

Order, the Court cannot find that Allstate took an "adverse

employment action" against Schneider in retaliation for

signing the waiver and/or filing an EEOC charge.

Further, the Court declines to entertain Plaintiffs’ request to

reconsider its March 28, 2003 ruling. The Seventh Circuit has

explained that “‘motions for reconsideration serve a limited

function: to correct manifest errors of law or fact or to

present newly discovered evidence." Caisse Nationale de

redit Agricole v. CBI Indus., Inc., 90 F.3 1269 (7

Cir. 1996) (citation omitted); see also Bank of Waunakee v.

ster Cheese Sales, Inc. 85 7th Cir

1990). In order to succeed on a motion for reconsider, a

plaintiff must either (1) present newly discovered evidence;

or (2) establish a manifest error of fact or law. See Qto v.

. Li ' i . Here,

Plaintiffs have offered neither new law nor new facts. Nor

have they suggested that the Court made a manifest error of

law or fact. The Court will not allow Plaintiffs to continue to

relitigate the same issues under the guise of a summary

judgment motion. Accordingly, the Court declines to

reconsider its previous ruling and finds Allstate is entitled to

judgment as a matter of law on Schneider's federal retaliation

claims.

C. Schneider's ADEA, Title VII, ERISA, and ADA Claims

1. Schneider's Waiver of his ADEA, Title VIL, ERISA, and

ADA Claims

Allstate argues that Schneider's waived his ADEA, Title VII,

ERISA, and ADA claims by signing the Election Form-

Release. Under the Program, Allstate offered each affected

agent the same four post-employment termination options

(Doc. 177 at 4). One option, the base severance option, did

not require a signed Election Form-Release (/d.). The other

three options required the terminated employee to sign an

Election Form-Release, which provided:

In return for consideration that I am receiving under the

Program, I hereby release, waive and forever discharge

Allstate . . . from any and all liability . . . arising out of,

connected with, or related to, my employment and/or

terminatica of my employment . . . 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 Employment Retirement Income Security Act

("ERISA"). .

(Def.'s Ex. 3). Schneider selected Option 2 and signed the

Election Form-Release on April 24, 2000.

a. Waiver of ERISA, Title VIL, and ADA Claims

In response to Defendant's summary judgment motion,

Schneider “does not dispute Defendant's claim [that he]

ratified the Release and Waiver as to his non-ADEA claims."

(Doc. 190 at 18 n.3). Thus, even if the Election Form-Release

was invalid at the time Schneider signed it, he subsequently

ratified it by receiving and retaining over $ 120,000 in

financial benefits and admits this in his response. This

admission is dispositive as to Schneider's waiver of his

ERISA, Title VII, and ADA claims. See Fleming v. United

tates Postal Serv. ; 3d 60 (7th Ci

1994) (ratification defense bars Title VII claim); Maloney v.

1999 WL 58551, at *7 (N.D. Ill, Feb. 3, 1999\(Conlon, J.)

(by retaining the benefits of signing the release plaintiff

ratified the release and could not escape release's bar of his

claims). Accordingly, the Court finds Schneider waived his

ERISA, Title VII, and ADA claims as a matter of law. n4

n4 Even though the Court finds Schneider waived his ERISA

claim, the Court will consider the substance of the claim

below.

siceteetiatetateattatiatateer End Footnotes- -------------

b. Waiver of ADEA claims

While employees are also free to waive their ADEA rights,

the waivers must comply with the Older Workers Benefits

Protection Act ("OWBPA"). Lloyd v. Brunswick Corp., 180

F.3d 893, 895 (7th Cir. 1999). Indeed, waivers are

enforceable under the OWBPA only if they are entered into

knowingly and voluntarily. Blackwell v. Cole Taylor Bank,

152 F.3d 666, 669 (7th Cir, 1998). At a minimum, the

following requirements must be met: (a) the waiver must be

part of an agreement between the individual and the

employer that is written in a manner calculated to be

understood by such individual; (b) the waiver must

specifically refer to rights or claims arising under this

chapter; (c) the waiver must be limited to rights or claims

arising before the waiver is executed; (d) the individual must

be given consideration over and above what the individual _

already is entitled to; (e) the individual must be advised in

writing to consult an attorney prior to executing the

agreement; (f) the individual must be given a set period of

days to consider the agreement; and (g) the individual must

be allowed to revoke the waiver within 7 days after its

execution. Lloyd v. Brunswick Corp., 180 F.3d at 896 (citing

29 U.S.C. § 626(f(1)). The OWBPA further provides that “if

a waiver is requested in connection with an exit incentive or

other employment termination program offered to a group or -

class employees," each employee must be "given a period of

at least 45 days within which to consider the agreement,” as

well as detailed information concerning eligibility for the

program and other factors bearing on an informed choice of

whether to participate in it. 29 U.S.C. § 626(f41 MF Wii), (H).

Here, Schneider does not dispute that Allstate complied with

OWBPA, but argues that his release was not voluntary or

knowing. Specifically, Schneider asserts that there was no

negotiation, he was unsure of the legal effect of signing

release, and he was under duress. In considering whether the

release was knowing and voluntary, courts apply the totality

of the circumstances standard. Thus, courts look at the

following factors: (1) the employee's education and business

experience; (2) the employee's input in negotiating the

agreement; (3) the clarity of the agreement; (4) the amount of

time the employee had for deliberation before signing the _

release; (5) whether the employee actually read the release

and considered its terms before signing it; (6) whether the

employee was represented by counsel or consulted with an

attorney; (7) whether the consideration given in exchange for

the waiver exceeded the benefits to which the employee was

already entitled by contract law; and (8) whether the

employee's release was induced by improper conduct on

defendant's part. Pierce v. Atchison, T. & S.F. Ry., 65 F.3d

562, 571 (7th Cir. 1995).

In this case, the Court finds that the undisputed facts and

circumstances, establish that Schneider's waiver was

knowing and voluntary. The Election Form-Release is

unambiguous, and indeed emphatic, that it released all of

Schneider's discrimination claims. Schneider, a college

graduate and an experienced businessman, had over fifteen

years experience as an insurance agent (Def.'s Ex. 5,

Schneider Dep. at 7:21-25; 8:17-18; 8:23-25). In November

1999, when Allstate informed Schneider that his contract

with Allstate was terminated and that he could chose one of

four post-termination options, Schneider carefully reviewed

the Election Form-Release and considered his options for

more than six months (Def.'s Ex. 5, Schneider Dep. at 59:8-

25; 75:12-76:15; 97:19-98:7). Further, Schneider consulted

with an attorney who recommended against signing the

release (Def.'s Ex. 5, Schneider Dep. at 59:8-18; 64: 1-4).

Against the attorney's advice, Schneider signed the Election

Form-Release on April 24, 2000 (Def.'s Ex. 5, Schneider

Dep. at 90:14-16). In exchange, Schneider received economic

benefit from Allstate, including: (1) an economic interest in

the book of business, which he did have as employee agent

(Def.'s Ex. 5, Schneider Dep. at 24:8-22); (2) the ability to

sell his newly acquired economic interest in his book of

business for $ 120,000; (3) a conversion payment of $ 5,000;

and (4) forgiveness of an earlier advance made to Schneider

for his Office Expense Allowance (Def.'s Ex. 5, Schneider

Dep. at 121:1-20). Lastly, Schneider admits that Allstate fully

performed its obligations (Def.'s Ex. 5, Schneider Dep. at

122:4-9).

Schneider responds to this overwhelming evidence by

arguing that he "had absolutely no input in negotiating the

terms of the agreement." (Doc. 190 at 19). Allstate does not

dispute this. However, this fact standing alone does not

mean, without more, that consent was unknowing and

involuntary. See v

(7th Cir. 1991 (holding lack of negotiation cannot be the sine

qua non of an effective waiver); see also Rivera-Flores v.

Bristol-Myers Squibb Carribean, 112 F.3d 9, 13 (ist Cir,

1997)(concluding that although there was little room for

negotiation with respect to release signed by laborer, consent

was knowing and voluntary). Likewise, Schneider's statement

that he was "unsure of the legal effect of signing the release"

fails to create a genuine issue of material fact (Doc. 190 at

19). The Court notes that it finds it hard to believe that

Schneider was confused as to whether he could pursue an

ADEA claim, when the plain language of the Election Form-

Release states he could not. It is also clear that Schneider

understood, as a result of Allstate's urging, that he had the

opportunity to obtain counsel regarding his purported

questions about the legal effect of the Election Form-Release.

In any event, even a mistaken belief as to the legal effect of a

release cannot be a basis on which to void a release,

"otherwise no releases, no accords and satisfactions, no

contracts, period, would be enforceable against a party who

became dissatisfied with the deal he had struck." Fortino v.

0.,9 389, 394-395 (7th Ci 1).

The Court also finds Schneider's defense of duress unavailing

as a matter of law. Schneider testified that "the duress that I

was under was I didn't feel like I had a choice in signing [the

Election Form-Release] or not. If I didn't sign it I was

terminated, if I did sign it my life was basically turned upside

down anyway as far as financial capabilities, as far as

continuing with Allstate." (Def.'s Ex. 5, Schneider Dep. at

88:21-25). In essence, Schneider's defense boils down to

his concerns that the termination would result in financial

hardship. In Illinois, economic duress is present "when one is

induced by a wrongful act of another to make a contract

under circumstances which deprive him of the exercise of

free will, and a contract executed under duress is voidable."

esolution Lv lero, 977 F.2d 3 13 (7th

Cir. 1992\citation omitted). In order to prevail on a claim of

economic duress, Schneider must demonstrate Allstate's

wrongful conduct left him “bereft of the quality of mind

essential to making a contract." /d. (citation omitted).

Under these facts, the Court concludes that Schneider's

personal economic burdens do not rise to the level of

"duress" for purpose of invalidating a termination release.

See Grant v. Potter, 2002 U.S. Dist. LEXIS 6200, 2002 WL

535093, at *6 (N.D. Ill, April 10, 2002) (Darrah, J.) ("fact

that [plaintiff] needed a job to meet her financial obligations

does not establish the defense of duress"). Here, Schneider

had a choice between four different alternatives, two of

which allowed him to stay with Allstate, and another which

-allowed him to forgo signing the release. Schneider chose the

former. He cannot now claim, after he received the benefit of

that bargain, that he was pushed into the decision. See Pierce,

65 F.3d at 569 ("one cannot successfully claim duress as a

defense to a contract when he had an alternative to signing

the agreement.”). n5 Accordingly, the Court finds that

Schneider signed a valid waiver with respect to his ADEA

claims. However, for completeness sake, the Court will

assume that the waiver was not valid, and consider Schneider

and Isbell's discrimination claims.

wm eterna ne eeee - Footnotes - --------------

nS Schneider's assertion that Allstate "cleverly hid its

discriminatory intent” is legally irrelevant to the issue of

duress.

2. Statute of Limitations

Allstate also argues that Schneider's claims are barred by the

statute of limitation. Title VII and ADEA do delineate certain

prerequisites before an individual may sue. For one thing, a

plaintiff must file a charge with the EEOC within 300 days of

——===

the alleged discriminatory act. See 42 U.S.C. § 2000e-5(a);

29 US.C. § 626(d\(2); see also Cada v. Baxter Healthcare

Corp., 920 F.2d 446, 449 (7th 1990). The limitations period

begins to run from the communication of the termination

decision to the employee. Del. State College v. Ricks, 449

U.S. 250, 258, 66 L. Ed. 2d 431, 101 §. Ct. 498 (1980);

len v. Marc’ 64 7(7th Ci

1995).

Here, Allstate announced the Program to Schneider, and the

rest of the affected employee agents, in November 1999. Yet

Schneider did not file his charge with the EEOC until over

360 days later, on December 14, 2000 (Def.'s Ex. 4).

Schneider now tries to defeat the explicit time limitations by

claiming he learned of the termination in late winter, early

spring (Schneider Decl. at P4). While the Court agrees with

Allstate that the statute of limitation began to run when

Schneider learned of his impending termination in the Fall of

1999 and thus are untimely, the Court will go on to consider

the substance of Schneider's claims.

D. Schneider and Isbeil's Discrimination Claims

1. ADEA

The ADEA makes it unlawful for an employer "to fail

or refuse to hire or to discharge any individual or otherwise

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of

employment, because of such individual's age." 29 U.S.C. §

623(a)(1). Under a disparate treatment theory, as is the case

here, plaintiffs must prove that their age "‘actually played a

role in [the employer's decisionmaking] process and had a

determinative influence on the outcome." Balderston v.

irbanks Morse ivision oO ltec .. 328 F.3

309, 321 (7th Cir. 2003) (citing Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 141, 147 L. Ed. 2d 105,

120 S. Ct. 2097 (2000) (citation omitted)). Stated differently,

to succeed on an ADEA claim, a plaintiff must establish that

he would not have been terminated “but for" his employer's

intentional age-based discrimination. /d. (citing Chiaramonte

Bed Group., Inc., 129 F.3d 391, 396 (7th Cir. 1997).

To prove age discrimination, a plaintiff may present either

direct or circumstantial evidence. Jd Most often, direct

evidence “requires an admission by the decisionmaker that

his actions were based on age." Jd Here, Plaintiffs have not

presented any direct evidence of discrimination, rather

Plaintiffs' case consists entirely of circumstantial evidence.

While the Seventh Circuit has recently indicated, “where

circumstantial evidence of discriminatory intent is relied on,

generally the burden shifting [or indirect] method of proof set

forth in Yee ype

36 L. Ed. 2d 668, 93 S. Ct. 1817, is applied" Jd (citing

Reeves, 530 U.S. at 142), prior precedent indicates that the

direct method may apply. See 7r v. tores

Co., 20 F.3d 734, 736 (7th Cir. 1994). Thus, the Court will

analyze Plaintiffs’ claims under both methods.

a. Direct Method

Under the direct proof method, plaintiffs may show either

acknowledgment of discriminatory intent by defendant or its

agents or circumstantial evidence the provides the basis for

an inference of intentional discrimination. See 7roupe, 20

F.3d at 736. There are three types of circumstantial evidence

of intention discrimination: (1) "suspicious timing,

ambiguous statements oral or written, behavior toward or

comments directed at other employees in the protected group,

and other bits and pieces from which an inference of

discriminatory intent might be drawn" /d. (citing Giacoletto

ax Zinc Co., 954 424 (7 ir. 1992); Holland v.

rson National Life Ins. Co., 883 F.2d 1307, 1314- h

Cir. 1989)); (2) “evidence, whether or not rigorously

statistical, that employees similarly situated to the plaintiff

other than in the characteristic (pregnancy, sex, race, or

whatever) on which an employer is forbidden to base a

difference in treatment received systematically better

treatment;" Jd. (citing American Nurses’ Ass'n vy. Illinois, 783

F.2d 716, 728 (7th Cir. 1986)); (3) “evidence that the plaintiff

was qualified for the job in question but passed over in favor

of (or replaced by) a person not having the forbidden

characteristics and that the employer's stated reason for the

difference in treatment is unworthy of belief, a mere pretext

for discrimination." /d. (citing St. Mary's Honor Center v.

Hicks, 509 U.S. 502, _, 125 L. Ed. 2d 407, 113 S. Ct. 2742

(1993); Ayala v. Mayfair Molded Products Corp., 831 F.2d

1314, 1318 (7th Cir. 1987)). “Each type of evidence is

sufficient by itself (depending of course on its strength in

relation to whatever other evidence is in the case) to support

a judgment for the plaintiff, or they can be used together." Jd

Plaintiffs in this case did not present any circumstantial

evidence of the second or third type - that is, either

comparative or pretext. Rather, Plaintiffs evidence consists of

random bits and pieces of information generated in

connection with a series of earlier initiatives not directly

related to the Program, including a study commissioned by

Allstate in 1996 regarding agent productivity and the sales

organization of the future ("SOOF") initiative in 1997-1998.

Plaintiffs allege that this evidence demonstrates that Allstate

unlawfully correlated age with productivity, and thus can be

used as direct evidence of discrimination. Among other

things, Plaintiffs point to Powerpoint presentations created in

connection with the 1996 study that correlates a slight decline

in productivity with age (Pls’ Ex. 2) and states "there is a

potential generational mismatch between [Allstate] agents

and the new customers [Allstate] seeks” (Plis' Ex. 1).

Plaintiffs also rely extensively on presentations generated by

an outside consultant, McKinsey Company, in connection

with the SOOF initiative arguing that these served as

precedent to Allstate's decision to convert the agent

workforce to independent contractors.

The Court finds, however, that Plaintiffs have failed as a

matter of law to provide evidence to support an inference of

intentional discrimination. As an initial matter, many of the

documents Plaintiffs rely on were generated by outside

consultants, not Allstate (See, e.g., Pis.' Ex. 7-19, 22-24, 26-

27). But more importantly, Plaintiffs have failed to show how

these documents, many marked draft, can be attributed to the

employment decision challenged in this case. See Cowan v.

le vl 1 A, 438, 443 (7th Ci

1997) ("This evidence 'must not only speak directly to the

issue of discriminatory intent, it must also relate to the

specific employment decision in question.) To the contrary,

the undisputed evidence shows that in November 1999,

Allstate decided to restructure its sales force (Doc. 177 at 3).

As part of this Program, Allstate terminated all of its 6,000

employee agent contracts and offered those employees the

choice to continue to work for Allstate as independent

contractors. (/d. at 4). The Court finds the record does not

support the conclusion that Allstate implemented the

Program in order to "get rid of older agents" because it

believed they were "less productive,” but offered the same

affected agents the opportunity to become Allstate exclusive

agent independent contractors. Furthermore, there is no

evidence that Plaintiffs' proffered documents were used by

any Allstate decisionmaker to implement the Program. See

Hunt y. City of Markham, Illinois, 219 F.3d 649, 652 (7th

Cir, 2000)("The fact that someone who is not involved in the

employment decision of which the plaintiff complains

expressed discriminatory feelings is not evidence that the

decision had a discriminatory motivation. That is simple

common sense.”) In sum, the Court finds that no rational trier

of fact could reasonably infer from the evidence that Allstate

fired Plaintiffs because the latter were members of a

protected class, in this case the class of those over the age

of 40.

The Court's conclusion is not changed by the four exhibits

offered by Plaintiffs in their Motion to Amend and

Supplement Plaintiffs’ Combined Memorandum in

Opposition to Defendant's Motion for Summary Judgment

Against Doris Isbell and Defendant's Motion for Summary

Judgment Against James Schneider (Doc. 269). Assuming

these exhibits are properly before the Court, Plaintiffs have

not shown why the composition of Allstate's call center

workforce is relevant to Allstate's decision to restructure its

insurance agent workforce. This job classification existed

before Allstate decided to restructure its agent workforce.

There is no evidence that the call-center employees replaced

the terminated agents or that they even had the similar job

requirements. Similarly, the Court rejects Plaintiffs assertion,

exemplified in Exhibit 4, that Allstate's decision was

somehow motivated by the disproportionate numbers of those

over the age of 40 then employed as sales agents. The

uncontroverted evidence establishes that all employee agents

were terminated regardless of age. The antidiscrimination

laws were not meant to bind an employer to a particular

business model that is unproductive or not cost effective

because the composition of an employer's workforce

disproportionately favors a particular group. Accordingly, the

Court cannot conclude that Plaintiffs produced sufficient

circumstantial evidence under the “direct method" to raise a

triable issue on their claims.

b. Indirect Method

Under the McDonnell Douglas approach, a plaintiff-

employee must first establish a prima facie case of

employment discrimination. “This requires proof of four

elements: (1) the employee is a member of the protected class

(in an ADEA case, employees over 40 years of age, see 29

U.S.C. § 631(a)); (2) the employee was performing at a

satisfactory level; (3) the employee was subject to an adverse

employment action; and (4) the employee was treated less

favorably than younger, similarly situated employees."

7 74(7

Cir, 2003), If the plaintiff succeeds in making out prima facie

case, n6 the burden then shifts to the employer to articulate

some legitimate, nondiscriminatory reason for the adverse

employment action. McDonnell Douglas, 411 U.S. at 802. If

the employer can offer such a reason, "the plaintiff . . . bears

the ultimate burden of showing that it is pretext for

discrimination." Schuster, 327 F.3d at 574 (citing Archnavy

y. Limagrain Genetics Corp., 294 F.3d 871, 876 (7th Cir.

2002)). ""To show pretext in a RIF case, an employee must

establish that an improper motive tipped the balance in favor

of discharge’ or that ‘the employer did not honestly believe in

the reasons it gave for firing him." Jd

n6 A plaintiff may not jettison the prima facie analysis and

move directly to the pretext inquiry. To the contrary, this

Circuit has held that "if a plaintiff is unable to establish a

prima facie case of employment discrimination under

McDonnell Douglas, an employer _~ not be subject to a

Here, Plaintiffs cannot establish the fourth factor of their

prima facie case-that they were treated differently than

similarly situated persons outside the protected class. It is

undisputed that the contracts of affected employee agents

younger than 40 years old were also terminated as part of the

Program (Def.'s Ex. 1 at P26; Def.'s Ex. 2 at PP6, 10).

Indeed, this Court has already held that “plaintiff [Isbell] was

not treated differently from other similarly situated

employees. She was treated identically. The record is clear

that all of the over 6,000 Allstate employee agents were

terminated, and all were offered the same four options for

what would happen after Allstate eliminated the job

classification of ‘employee agent." (Doc. 177 at 13). Plaintiffs

admit that they were treated identically to the other 6,000

employee agents affected by the Program (Def.'s Ex. 6, Isbell

Dep. at 149:10-17; Def.'s Ex. 5, Schneider Dep. at 54:5-11).

Therefore, Plaintiffs’ age discrimination claims fail as a

matter of law. See Bennington y. Caterpillar, Inc., 275 F.3d

654, 659 (7th Cir. 2001 plaintiff cannot establish a violation

of the ADEA if he cannot put forth evidence that similarly

situated employees were treated more favorably); Harris v.

in-Willi n rvs. ; .2d 892

995 (S.D. Ill, 2000) (Herndon, J. rejecting discrimination

claim where plaintiffs could not prove similarly situated

employees outside the class were treated more favorably).

The Seventh Circuit's holding in Blackwell, 152 F.3d 666

(7th Cir, 1998), further supports the Court's finding. In

Blackwell, the defendant bank decided to eliminate the

position of branch manager. At the time of this decision,

there were seven branch managers, five of whom were over

40 (plaintiffs), and two who were under 40. As part of its

reorganization, the bank offered to ali of the branch managers

the opportunity to enter into a new position with the

company, or to quit early. In affirming summary judgment in

favor of the employer on plaintiffs' claims of age

discrimination, the Blackwell court considered as dispositive

the fact that while some of the terminated branch managers

were under 40 years old and some were in the protected class,

“ail were subjected to the change and all decided to quit." /d.

at 671. The Court held that if "jobs are abolished by a

reduction in force, or if job classifications are abolished, the

workers competing to remain employed are in the same

position as workers applying for a new job." /d at 672.

Under these circumstance, older workers simply "have no

entitlement to preferential consideration for these jobs."

Here, the “bank created a new job and offered it to the

incumbents of the old jobs whatever their age, all of whom.

again whatever their age, turned it down." Jd. The Court

concluded that "job was the plaintiffs’ for the asking" and

they cannot complain that they were discriminated against if

the job went to other persons after the rejected them. /d

Simply put, the Court finds that as in Blackwell, Plaintiffs

have not stated a valid claim of ADEA discrimination.

2. ERISA

Section 510 of ERISA provides, in pertinent part:

It shall be unlawful for any person to discharge, fine,

suspend, expel, discipline, or discriminate against a

beneficiary for exercising any right to which he is entitled

under the provision of an employee benefit plan.

29 U.S.C, § 1140. In enacting section 510, Congress’ primary

aim was to prevent “unscrupulous employers from

discharging or harassing their employees in order to keep

them from obtaining vested pension rights” or other benefits.

ri v. nt'] 7

of ERISA protects employees against dismissal by employers

who seek to limit costs of health benefits by preventing the

use of such benefits. Lindemann y. Mobil Oil Corp., 141 F 3d

290, 295 (7th Cir, 1998).

To prove a violation of section 510, plaintiffs must

demonstrate that their employers terminated them with the

specific intent of preventing or retaliating for the use of

benefits. See Little v. Cox's Supermarkets, 71 F.3d 637, 642

n.3 (7th Cir. 1995). In other words, “plaintiff must ultimately

show that a desire to frustrate [the plaintiff's] attainment or

enjoyment of benefit rights contributed toward the

employer's decision and [the plaintiff] can avoid summary

judgment only if the materials properly before the district

court, construed sympathetically, allow for such a

conclusion." /d. Further, when establishing intent

under section 510 of ERISA, proof of pretext is required. /d.

at 643. Such proof may be direct of circumstantial. Jd

Circumstantial evidence of discrimination can be presented

through the burden-shifting analysis set forth in McDonnell

ane SAE. 5. SE AL LE TA A A a

668, 93 S. Ct. 1817 (1973), and applied M the Seventh

Circuit in Grottkau v. limber 3d 70, 73 (7

Cir. 1996). Lindemann v. Mobil Oil Corp. 141 F.3d 290, 296

(7th Cir. 1998). To make out a prima facie case under section

510, plaintiff must show that he (1) belongs to the protected

class; (2) was qualified for his job position; and (3) was

discharged or denied employment under circumstances that

provide little basis for believing that the prohibited intent to

retaliate was present. /d (citation omitted). "However, it is

unnecessary for this Court to determine whether a plaintiff

has established a prima facie case where a defendant has

advanced a legitimate, nondiscrizumnatory reason for his

action. See Grotthau, 79 F.3¢.@ 73. "Where the defendant has

done everything that would be réquired of him if the plaintiff

had properly made out a prima facie case, whether the

plaintiff really did is no longer relevant. /d. (quoting United

tat. stal Serv. Bd. s v. Aikens, 460 7

715, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983))."" /d@

As stated earlier, the Court has already found that Allstate

established that Isbell and Schneider were dismissed as part

of a restructuring of its agent sales force - a legitimate

nondiscriminatory reason (Doc. 177). n7 Plaintiffs have

offered no evidence to show Allstate's decision was

impermissibly motivated by a desire to deprive those agents

of their health care benefits. Indeed, the documents offered

by Plaintiffs suffer from the same infirmities as those offered

in support of their ADEA claim, namely Plaintiffs fail to

show how they even remotely relate to the employment

decision in question. None of the documents Plaintiffs

presented were created in connection with or refer to the

Program. Nor were the documents shared with those

initiating the Program. In short, Plaintiffs' evidence neither

establishes the prima facie case nor demonstrates that

Allstate's proffered legitimate, nondiscriminatory business

reason for implementing the program was pretextual. No

action for ERISA lies where, as here, the alleged loss of a

right is a mere consequence of the employment termination.

Lindemann, 141 F.3d at 297; Meredith, 935 F.2d at 127.

Accordingly, the Court will deny Plaintiffs' ERISA claims.

n7 Under the circumstances present here, the Court declines

to use its discretion to require Plaintiffs to exhaust their

administrative remedies as a prerequisite to bringing a civil

action to enforce section 510 of ERISA. See Salus v. GTE

Di ies Serv.C. 104 F.3d 131, 138 (7th Cir. 1997)

E. Allstate's Counterclaim for Breach of Contract

Allstate claims that Schneider is liable for breach of contract

in connection with his Election Form-Release. Under Illinois

law, the elements of breach of contract are: (1) the existence

of a valid and enforceable contract; (2) performance by

plaintiff; (3) breach of contract by the defendant; and (4)

resultant injury to plaintiff. Henderson-Smith & Assoc., Inc.

v, i Family Serv. Center, Inc., 32 _3d 15

752 N.E 3, 43, 256 Ill 488 ill i

2001) (citation omitted). The Court has already found a

Election Form-Release was valid and enforceable. The plain

language of the Release prevented Schneider from filing a

lawsuit against Allstate pursuant to the ADEA, ERISA,

ADA, and Title VII (Def.'s Ex. 3). Thus, Schneider breached

the agreement by bringing the instant suit. It is also clear that

Allstate fully performed its obligations under the contract

(Def.'s Ex. 5, Schneider Dep. at 122:4-9). While the Court

finds that Allstate has proven liability, it has not provided any

proof in connection with the issue of damages. The Court

therefore denies Allstate's motion without prejudice and

reserves ruling on the issue of damages until a later date.

IV. Conclusion

For the foregoing reasons, the Court GRANTS in part and

DENIES in part Defendant Allstate's combined motion for

summary judgment against Plaintiffs Doris Isbell and James

Schneider (Doc. 187). The Court also GRANTS Plaintiffs’

motion to amend and supplement their opposition (Doc. 269).

All other pending motions are DENIED as moot at this time.

The parties are permitted to refile these motions to the extent

that they relate to viable issues still before the Court. The

Court also directs all parties to attend a conference on

Friday, December 19, 2003 at 10:00 a.m. in order to

discuss the remaining issues in the case and to set a schedule

for their timely resolution.

IT IS SO ORDERED.

Signed this 16th day of December, 2003.

s/_ David R. Herndon

DAVID R. HERNDON

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DiSTRICT OF ILLINOIS

DORIS ISBELL,

Plaintiff

FILED

SEP 25 2002

v. CLERK U.S.

DISTRICT COURT

SOUTHERN DISTRICT

OF ILLINOIS

ALLSTATE INSURANCE CO., EAST ST. LOUIS

OFFICE

Defendant. No. 01-CV-0252-DRH

ORDER

Herndon, District Judge:

Before the Court tod-y is Plaintiffs motion for partial

summary judgment on liabil ity alone with respect to both

counts of her Fourth Amended Complaint. (Doc. 68). The

Court DENIES the motion.

IT IS SO ORDERED.

Signed this 25" day of September, 2002.

s/ David R. Herndon

DAVID R. HERNDON

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DORIS ISBELL,

Plaintiff

FILED

MAR 28 2003

v. CLERK US.

DISTRICT COURT

SOUTHERN DISTRICT

OF ILLINOIS

ALLSTATE INSURANCE CO., EAST ST. LOUIS

OFFICE

Defendant. No. 01-C%, -0252-DRH

MORA R

Herndon, District Judge:

L Introduction

Plaintiff ‘s Fourth Amended Complaint contains two

counts. In Count One, Plaintiff Doris Isbell seeks recovery

from her former employer, Allstate Insurance Co., for al eged

violations of four federal employment statutes in conne<*ion

with Allstate’s decision to terminate her employment as an

agent. Count Two seeks recovery on a state law retaliatory

discharge theory, alleging that Allstate terminated Plaintiff to

retaliate against her for refusing to waive and release her

Workers Compensation claim. Now before this Court is

Allstate’s motion for partial summary judgment on liability

with respect only to the retaliation claims in Counts | and II of

the Fourth Amended Complaint. (Doc. 87). Allstate does not

seek summary judgment on the non-retaliatory claims in Count

L. Plaintiff responded to Allstate’s motion, and the Equal

Employment Opportunity Commission (“EEOC”) filed an

amicus brief urging the Court to rul« for the Plaintiff on her

federal retaliatory claims. For the reasons set froth below, the

Court GRANTS Allstate’s motion. (Doc. 87).

iL. Facts

The parties filed a Joint Statement of Material Facts

that was extremely brief (Doc. 91). In addition, Defendant filed

its own lengthier “Proposed Joint Statement of Undisputed

Material Facts,” which contained citations to evidentiary

materials in the record. (Doc. 92).

Plaintiff filed a Response to Defendant’s statement, also with

record citations. (Doc. 93). Plaintiff listed “uncontested” as a

response to only three of Defendant’s asserted facts, and

objected to the rest on such grounds that they were not relevant

or omitted other information that would put the asserted facts in

greater context. However, Plaintiff specifically denied only one

of the Defendant’s Statements of Fact. (Doc. 93, 926,

Response). The Court carefully examined the various

statements of fact and the factual materials on which hey are

based, some of which were attached as exhibits in support of

Plaintiff s summary judgment motion. (Doc. 68).'The

following account of the material facts of this case is taken

from the parties’ Joint Statement, from the facts asserted by the

Defendant which Plaintiff did not deny, and from documents

filed by Plaintiff in support of her motion.

Plaintiff worked for Defendant Allstate as an employee

insurance agent, and her duties included selling Allstate

Insurance policies. (Doc. 91, J1). As an employee, Plaintiff

received certain standard employment benefits. (Doc. 68,

Plaintiff s Exhibit 1, §2(b)). The employment contract

' The Court denied this motion on September 25, 2002.

governing this relationship included an employment “at-will”

provision.

In addition, you employment and this Agreement may be

terminated at will by either party, subject only to such

limitations and restrictions as may be imposed by law, and in

accordance with Company rules and procedures. Termination

shall be effective upon giving notice of termination orally or in

writing, delivered personally or mailed to the last known

address of the other.

In November, 1999, Allstate publicly announced that it

was launching a companywide “Preparing for the Future”

Group Reorganization Program (“Program”). (Doc. 93, 96).

The Program, which applied tin al states except West Virginia

and Montana, included a plan to change the nature of its

business relationship with those persons who sold its insurance.

(Doc. 93, f]J7-10). Essentially, Allstate would no longer sell its

insurance through employees, who received company benefits,

but would do so through a network of independent contractors.

(Doc. 93, 74-5). As a part of this plan, Defendant announced

that all its employee agent contracts were terminated, with an

effective date of June 30, 2000, over six months later. (Doc. 93,

78). The terminations of all the employee agents were effective

without regard to whether or not they signed an agreement

Allstate sought which would broadly waive and release any

right they may have had to sue Allstate, specifically including

the ADEA, Title VIL, the ADA, and ERISA. (Doc. 93, 98);

(Doc. 68, Plaintiff's Exhibit 4). The release applied only to past

claims, not to claims that may arise after it was signed. (Doc.

68, Plaintiff's Exhibit 4).

As part of this Program, Defendant also offered four

distinct options for its terminated employee agents, two of

which included continuing to sell Allstate insurance not as an

employee, but as an independent contractor....The four options

were: (1) Become an independent contractor exclusively selling

Allstate insurance, including an opportunity to earn a

transferable economic interest in one’s book of business and a

conversion bonus of $5,000; (2) Become an independent

contractor for a limited period of time with an opportunity to

acquire and sell an economic interest in a book of business on

an accelerated basis; (3) Severance payment of one year’s

salary, and (4) Severance payment in a smaller sum. (Doc. 93,

410). The first three options required the employee agent to

sign the release of all past liability claims against Allstate, but

the fourth did not. (Doc. 93, ¥912-15). Thus, if an employee

agent wished to continue selling Allstate insurance or receive a

year of severance pay, she had to sign the release. Those who

chose not to sign the release would receive much lower

severance pay. (Doc. 93, 412). The terminated employees had

six months of continued employment with Allstate to make

In November or December, 1999, Plaintiff attended a

meeting to explain the Program in Collinsville, Illinois. (Doc.

93, 919). The meeting included a statement that all the agents’

employment was terminated, but that over the next six months

they could select one of the four options described above. (Doc.

93, $20). Plaintiff testified at her deposition that she understood

at that meeting, held in November or December, 1999, that her

employment at Allstate had been terminated. (Doc. 91, 21);

Isbell Deposition, pp. 110, 112.

Q: Ms. Isbell, your employment contract was going to

be terminated regardless of whether you signed the release. Do

you understand that?

A: Right...

Q: Did you understand, notwithstanding anything that

Mr. Smith may have said, that your employment with Allstate

was going to terminate as o June 30, 2000, whether or not you

signed the release?

A: Yes, we were aware that the contract was changing

as of June 30™. Everybody was aware of that. Everybody knew

that.

Q: The contract was not just changing, the contract

was being terminated?

A: Terminated, nght; exactly.

Q: And you knew that?

A: That’s what we received, yes. That was the

information we received.

Q: And you knew that was going to happen regardless

of whether you signed a release or waiver?

A: Exactly; yes.

Isbell Deposition, pp. 203-04.

Plaintiff notified Allstate on May 24, 2000 that she did

not intend to sign the reiease, but wanted to continue with

Allstate as an independent contractor. (Doc. 68, Plaintiff's

Exhibit 13). The next day, an Allstate manager reminded

Plaintiff that the release was required if she wished to continue

working with Allstate as an independent contractor, and that

her work with Allstate on any basis would end on June 30,

2000, if she did not sign it. (Doc. 68, Plaintiff's Exhibit 15). On

May 26, 2000, Plaintiff notified Allstate that she would not

sign the release, that she no longer intended to be an

independent contractor, but that she wished to continue

working under her old employment contract. (Doc. 68,

Plaintiff’ s Exhibit 16). Five days later, Plaintiff filed a charge

of retaliation and age discrimination with the E.E.0.C. (Doc.

68, Plaintiff's Exhibit 17). Plaintiff ceased working for Allstate

on June 30, 2000. (Doc. 91, 4)

Seven months before Allstate announced the Program,

on April 15, 1999 Plaintiff filed a report claiming she sustained

a work-related injury. (Doc. 91 $3). She filed an application for

workers compensation benefits some time later. Doc. 91, 43).

Plaintiff received workers compensation benefits prior to

November, 1999, through June 30, 2000. (Doc. 93, 423).

TIL Analysis

The Court can grant summary judgment where “there is

no gemuine issue as to any material fact and that the moving

party is entitled to a judgment as a mater of law.” Fed. R. Civ.

P. 56(c; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

To determine whether a genuine issue of snaterial fact

precluding summary judgment exists, the Court must construe

all facts in the light most favorable to the Plaintiff, the

nonmoving party, and draw all reasonable and justifiable

inferences in her favor. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986).

In Count L, Plaintiff claims that the Defendant’s actions

constituted retaliation in violation of four federal statutes: the

Age Discrimination in En. ployment Act (“ADEA”); 29

US.C. $§621 et seq.; ER_LS.A., 29 U.S.C. §§ 1140 et seq.;

Title VIL, 42 U.S.C. §2000¢ et seq.; and The Americans with

Disabilities Act (“ADA”), 42 U.S.C. §§12101 et seq.; (Doc.

48, 923). She also claims that the Defendant’s acts constituted

age discrimination in violation of the ADEA, and “discharge,

discrimination” in violation of E.R.LS.A. (Doc. 48, 799-14,

23). In Count II, the Plaintiff asserts a state-law retaliatory

discharge claim, that Defendant terminated her in retaliation for

refusing to sign a release that would bar her from proceeding

with the Workers Compensation claim. (Doc. 48 929-32) The

Court will consider the federal retaliatory discharge claims

first, and will set forth its reasons for rejecting the arguments in

the EEOC’s amicus brief.

A. The Federal Claims of Retaliatory Discharge

The Seventh Circuit frequently speaks to the law as it

relates to claims of f¢aliatory discharge, and it did so recently

in examining two distimes methods by which such a claim may

be established. Rogers v. City of Chicago, 320 F. 3d 748, 753

(7 Cir. 2003). The first, the “direct method,” includes two

types of evidence: direct evidence and indirect evidence. Direct

evidence is defined as “that, if believed by the trier of fact,

would prove the fact in question without reliance on inference

or presumpiion.” Rogers, 320 F. 3d at 753, quoting Walker

v. Glickman, 241 F. 3d 884, 888 (7 Cir. 2001). Such

evidence “essentially requires an admission by the decision-

maker that his actions were based upon the prohibited animus,”

Radue v. Kimberly-Clark Corp., 219 F. 3d 612, 616 (7™ Cir.

2006), and is rarely encountered. Rogers, 320 F. 3d at 753.

However, plaintiffs using the “direct method” may also

produce circumstantial evidence, that is, “evidence that allows

the jury to infer intentional discrimination by the

decisionmaker.” Id. at 753.

Plaintiffs unable to establish a case by the “direct

method” may also proceed by the “indirect method.” Rogers,

320 F. 3d at 754. The indirect method also authorizes two

types of evidence. In Stone v. City of Indianapolis Public

Utilities Division, 281 F. 3d 640, 644 (7™ Cir. 2001)(Posner,

J.), the Seventh Circuit provided a detailed explanation of the

indirect method.

The plaintiff in a retaliation case should have two (and only

two) distinct routes to obtaining/preventing summary

judgment. One, the more straightforward, the one that is

unrelated to McDonnell Douglas, is to present direct

evidence (evidence that establishes without resort to

inferences from circumstantial evidence) that he engaged in

protected activity (filing a charge of discrimination) and as

a result suffered the adverse employment action of which he

complains. If the evidence is uncontradicted, the plaintiff is

entitled to summary judgment. If it is contradicted, the case

must be tried unless the defendant presents unrebutted

evidence that he would have taken the adverse employment

action against the plaintiff even if he had had no retaliatory

motive; in that event the defendant is entitled to summary

judgment because he has shown that the plaintiff wasn't

harmed by retaliation.

The question of how much evidence the plaintiff must

present to establish a triable issue that the adverse

employment action of which he complains was retaliatory is

not susceptible of a general answer. But we remind that mere

temporal proximity between the filing of the charge of

discrimination and the action alleged to have been taken in

retaliation for that filing will rarely be sufficient in and of

itself to create a triable issue. See Bilow v. Much Shelist

Freed Denenberg Ament & Rubenstein, P.C., 277 F.3d 882,

2001 WL 1381076, at *9 (7th Cir. 2001) ; : Pugh. Clev af

1998).... The second route to summary judgment, the

adaptation of McDonnell Douglas to the retaliation context,

requires the plaintiff to show that after filing the charge only

he, and not any similarly situated employee who did not file a

charge, was subjected to an adverse employment action even

though he was performing his job in a satisfactory manner.

Stone, 281 F. 3d at 644. The Court will analyze the Plaintiffs

retaliation claims under both the direct and indirect methods.

1. The “Direct Method”

Taking the “direct method” first, Plaintiff may produce

either direct evidence or indirect evident. As noted, direct

evidence, usually construed as a confession of impermissible

motive, is extremely rare. Rogers, 320 F. 3d at 753. Plaintiff

presented none of this kind of evidence here. There is no

indication that anyone on behalf of Allstate confessed that the

company’s reason for implementing the Program was to

retaliate against any employee who refused to release federal

discrimination claims or filed charge with the EEOC.

Therefore, the Court must whether there is sufficient

circumstantial evidence that wouid allow a jury to infer that

Allstate intentionally retaliated against her. Id.

At first glance, the temporal proximity of Plaintiff's

notice that she did not intend to sign the release and the filing

of her EEOC charge to the end of her employment might seem

suspicious. However, that suspicion dissolves when viewed in

the factual context of this case. That context shows that the

temporal proximity of these events is coincidental, not causal,

and that the Defendant’s decision to terminate Plaintiff and the

other employee agents preceded Plaintiff's protected conduct.

Plaintiff s admissions as to what she learned shortly

after Allstate announced its Program make this point clear.

Plaintiff attended an Allstate employee meeting in Collinsville,

Illinois, in November or December of 1999, in which Allstate

explained the new Program. Plaintiff learned at that meeting

that she would no longer be employed under her employment

contract as of June 30, 2000, “regardless of whether [she]

signed a waiver or release or not.” Isbell Deposition, p. 110.

Plaintiff also understood at the November 1999 meeting that

the termination applied to all of Alistate’s more than 6,000

employee agents — not just to her. Jsbell Deposition, p. 112.

Thus, Plaintiff understood as early as November, 1999 that

Allstate was eliminating the job of employee agent across the

board no matter what she did — regardless of whether she had

any Claims, would or would not sign any releases, or file any

EEOC charges at some future date. The challenged conduct —

Defendant’s decision to terminate Plaintiff s employment —

occurred long before Plaintiff engaged in the protected activity

of choosing not to sign a release and filing an EEOC charge.

The Seventh Circuit has characterized as “simply

misconceived” a similar retaliation claim in which the

protected activity — filing a claim of age-related employment

discrimination — occurred after the challenged action that gave

rise to the retaliation claim. Salvato v. Illinois Dept. of

Human Rights, 155 F. 3d 922, 925 (7™ Cir. 1998). The same

characterization is appropriate here. There is no dispute that

Plaintiff notified Defendant of her intention not to sign the

release and filed her EEOC claim approximately six months

after she understood that her employment contract would be

terminated.

Plaintiff's response to this point is complicated, but

equally misguided. She argues that Allstate’s entire course of

conduct relating to asking the employee agents for a release

was a scheme to retaliate against her for refusing to waive her

rights to sue. (Doc. 89, passtm). However, Plaintiff also admits

that “there does not appear to be any cases that discuss such a

retaliatory scheme.” (Doc. 89, p. 7). Therefore, the Court must

rely on statutory and binding Seventh Circuit authority that an

employer may validly seek a release of past discrimination

claims, even where it eliminates a job classification. 29 U.S.C.

§626(f(setting forth conditions for valid waiver of ADEA

claims): Blackwell v. Cole Taylor Bank, 152 F. 3d 666

(Posner, C.J.\(discussing waiver of discrimination claims

where employer eliminated an entire job classification and

offered existing workers new positions with different

requirements); Oberg v. Allied Van Lines, 11 F. 3d 679 (7

Cir. 1994)(discussing statutory requirements for valid

waivers of age discrimination claims). Without deciding

whether Allstate’s proposed release was valid,” the Court notes

that there is no question that Plaintiff had ample time —

? Plaintiff agrees that this issue is not now before the Court.

“Ms. Isbell, however, never signed the release; the validity of

the release is not even an issue.”(Doc. 89, p. 5).

approximately six months — to decide whether or not to sign it,

and that it appears to be supported by consideration. The

employees who chose to sign the release received either

enhanved severance benefits or the opportunity to continue

working with Alistate as independent contractors with the

opportunity to acquire a marketable book of business. Those

who, like Plaintiff, chose not to sign the release received a

smaller severance package — and preserved whatever night they

may have had to sue Allstate. Thus, on the undisputed facts, the

Court cannot accept Plaintiff's characterization of Allstate’s

conduct as a massive, prohibited retaliatory scheme.

Plaintiff also claims that Allstate’s “scheme” to deprive

its employees of its right to sue disproportionately affected

older workers, since 90% of its employees were over the age of

40. (Doc. 93, 10, Response, et passim). Presumably this fact is

alleged in an attempt to provide circumstantial evidence of

Defendant’s motive to retaliate against its older employees.

However, the only support Plaintiff cites for this factual

assertion is a statement in her affidavit. (Doc. 68, Isbell

Affidavit, 918). The Court cannot find a triable issue in this

allegation. “It is well-settled that conclusory self-serving

affidavits, without support in the record, do not create a triable

issue of fact.” Hall v. Bodine Elec. Co., 276 F. 3d 345, 354

(7™ Cir. 2002). The Court cannot conclude that Plaintiff

produced sufficient circumstantial evidence under the “direct

method” tc raise a triable issue on her retaliation claims.

2. The “Indirect Method”

The Court has deterrnined that Plaintiff cannot establish

a triable case using the “direct method” described in Rogers v.

Chicago. It must now examine whether she can establish a

case under the “indirect method” set forth in Stone v. City of

Indianapolis Public Utilities Division. Stone also described

two forms of evidence available, the first being “direct

evidence” — “evidence thai establishes without resort to

inferences from circumstantial evidence{]} that [Plaintiff]

engaged in protected activity (filing a charge of discrimination)

and as a result suffered the adverse employment action of

which [she complains. Stone, 281 F. 3d at 644. Plaintiff has

not presented “direct evidence” under this method. The adverse

employment action of which Plaintiff complains was

effectuated by Defendant long before she engaged in any

protected activity. Moreover, Plaintiff understood that her

status as an employee would be terminated regardless of

whether she engaged in any protected activity. Therefore, the

Plaintiff did not engage in protected activity as “as a result

suffer{] the adverse employment action of which [s]he

complains.” Id.

The Court also believes that Plaintiff did not present

sufficient evidence of the other kind described by Stone: “that

after filing the charge only [s]he, and not any similarly situated

employee who did not file a charge, was subjected to an

adverse employment action even though [s]he was performing

[her] job in a satisfactory manner.” Id. In this case, Plaintiff

was i1ot treated differently from the other similarly situated

employees. She was treated identically. The record is clear that

all of the over 6,000 Allstate employee agents were terminated,

and all were offered the same four option for what would

happen after Allstate eliminated the job classification of

“employee agent”. Plaintiff understood that Allstate was

terminating all the agents’ employment contracts months

before she gave notice that she would not sign the release and

filed her EEOC claim. Allstate’s decision to terminate Plaintiff

and her 6,000 fellow employees was made independently of

her own decision not to sign the release and to file the EEOC

claim.

Plaintiff has failed to raise a gemuine dispute of material

fact on her federal retaliation claims. The record is devoid of

evidence sufficient to demonstrate that Defendant subjected her

to an “adverse employment actirn” as a way of retaliating

against her for refusing to sign the zelease or for filing the

EEOC charge. Allstate simply made a company-wide decision

to eliminate the job of all employee agents and proceed with

the business of selling insurance through independent

contractors. Defendant is entitled to judgment as a matter of

law on the federal retaliation claims in Count I.

3. The EEOC’s Amicus Brief

The Court granted the EEOC’s motion for leave to file

an amicus brief supporting Plaintiff's theory of the case. The

EEOC strongly argues that the Court should mule that Allstate

was engaged in a scheme to retaliate against the employees

who chose not to sign the release and waiver, and that refusing

to sign the release was “protected activity” (Doc. 150). Because

the Court rejects the EEOC’s argument on the first point, there

is no need to consider the EEOC’s second argument.

‘Le Court does not accept the EEOC’s characterization

that Allstate fired Plaintiff solely because she refused to sign

the release. (Doc. 150, p. 2). As discussed about, the

undisputed facts indicate that Allstate terminated Plaintiff and

all of its over 6,000 other employee agents because t hey had

the status of being “employees.” Put simply, Allstate c hose to

change the structure of its sales force. Its decision to terminate

Plaintiff occurred months before she notified the company that

she would not sign the release, and, as Plaintiff acknowledged,

her employment contract as terminated regardless of whether

she chose to sign the release.

The EEOC argues that Allstate’s decision to re-hire its

employees only if they signed the release was an “adverse

action” because it withheld from them the right to entire into a

new economic relationship for engaging in protected activity.

(Doc. 150, p. 9). In making this argument, the EEOC places

particular reliance on Hishon v. King & Spaulding, 467 U.S.

69 (1984). The issue in Hishon was whether considering

plaintiff for a partnership in her law firm was a “term,

condition, or privilege” of her employment as an associate

attorney sufficient to trigger Title VII. The Supreme Court held

that the plaintiff had sufficiently alleged that partnership

consideration was such a “term, condition, or privilege” and on

that basis reversed the dismissal of her complaint.

Hishon is clearly distinguishable from the case at bar.

Prior to the termination, Allstate’s relationship with the

Plaintiff was governed by the employment contract. (Doc. 68,

Plaintiff’ s Exhibit 1). This contract is a “term, condition, or

privilege” of her employment as an agent. To the contrary, the

employment contract was terminable at the will of either party,

“subject only to such limitations and restrictions as may be

imposed by the law and in accordance with Company rules and

procedures.” (doc. 68, Plaintiff's Exhibit 1, 411). Thus,

Hishon’s holding is inapplicable here.

This point illustrates a fundamental problem with the

EEOC’s position. The EEOC’s retaliation argument depends

on the proposition that the Plaintiff had a right to continue in an

employment relationship with Allstate after it decided to

eliminate her job in a company-wide reorganization. According

to the EEOC, “the adverse action Plaintiff challenges is her

opportunity to continue to work as an Allstate agent after the

conversion from employee-agents to independent contractor

agents.” (Doc. 150, p. 7). However, the undisputed facts in the

_ record indicate that Plaintiff simply did not have the right to

continue working for Allstate after it decided to reorganize its

sales force. Such a right is nowhere reflected in her “at-will”

employment contract and it is not represented in any other

materials before the Court.

The EEOC asks the Court to accept that Plaintiff

somehow had the right to continue working for Allstate

indefinitely. Only by accepting this position is it even

conceivable to view the termination as retaliation. As discussed

above, this characterization of the facts is not supported by the

record. Allstate decided to eliminate from its sales force the

position of employee agent. Plaintiff understood that was what

Allstate wanted to do, and she agreed at her deposition that her

employment contract would come to an end regardless of

whether she signed the release. Her termination was the result

of a unilateral decision by her employer — a harsh decision

perhaps, but one authorized by the “at-will” employment

agreement Plaintiff signed. It is undisputed that Allstate made

this decision long before Plaintiff gave notice that she would

not sign the release. Allstate’s pre-existing decision cannot be

characterized as an act of retaliation for a subsequent act.

For the same reason, the Court must reject the EEOC’s

analogy between the case at bar and Solon v. Gary

Community School Corp., 180 F. 3d 844 (7™ Cir. 1999). The

EEOC asserts that this case means “employers may not... force

employees to accept [early retirement or other departure

incentives] or penalize those who decline the offer; such

individuals are entitled to continue working without

discrimination.” (Doc. 150, p. 13). Be that as it may, the

relevance of Solon to the case at bar is severely compromised

by its markedly different facts. The plaintiff in Solon were

public school teachers presented with an allegedly

discriminatory early retirement program, not with the total

elimination of their position in the school system and the offer

of different jobs. Solon, 180 F. 3d at 851-53. The Solon

plaintiffs may well have been “entitled to continue working

without discrimination” at the same jobs they already had. Id.

at 853. The same cannot be said for the Plaintiff in this case,

whose employment was terminable at will, and whose

employer chose to reorganize its sales force by eliminating her

position altogether. The option of continued employment at the

same job is not a factor here.

Fundamentally, the EEOC’s argument requires one to

accept that there was no difference between being an Allstate

employee and an independent contractor selling Allstate

insurance. As the EEOC states, “In fact, the record reflects that

the work was not fundamentally different; both before and after

the reorganization, the agents worked selling Allstate

insurance.” (Doc. 150, p. 13). The Court disagrees. There is a

clear difference between being an employee-at-will under a

contact granting to the employer “all business produced under

the terms of [the] agreement.”(Doc. 68, Plaintiff's Exhibit 1, 93

(b)), and a self-employed independent contractor with a

marketable book of her own insurance business. Plaintiff was

not offered the same job she already had. Because the Court

has concluded that Allstate’s decision to eliminate Plaintiff s

job and terminate her contract occurred months before she gave

notice that she would not sign the release, it must reject the

EEOC’ s invitation to rule that Allstate engaged in retaliatory

conduct against her.

B. State-Law Retaliatory Discharge: Workers

Compensation

Defendant also moved for summary judgment on

Plaintiff's state-law claims in Count II. ... Defendant is entitled

to a judgment as a matter of law on the state-law retaliation

claim.

IV. Conclusion

The Court GRANTS the Defendant’s motion for

partial summary judgment on Plaintiff's retaliation claims.

(Doc. 87). The case will now proceed only with respect to

Plaintiff s non-retaliatory federal claims contained in Count I

of the Fourth Amended Complaint.

IT IS SO ORDERED.

Signed this 28" day of March, 2003.

s/ David R. Herndon __

DAVID R. HERNDON

United States District Judge

GENE R. ROMERO, et al. v. ALLSTATE INSURANCE

COMPANY, et al. GENE R. ROMERO, et al. v. THE

ALLSTATE CORPORATION, et al. EQUAL

EMPLOYMENT OPPORTUNITY COMMISSION v.

ALLSTATE INSURANCE COMPANY, et al.

CIVIL ACTION NO. 01-3894, CIVIL ACTION NO. 01-

6764, CIVIL ACTION NO. 01-7042

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF PENNSYLVANIA

March 30, 2004, Decided

March 30, 2004, Filed

OPINION: MEMORANDUM AND ORDER

Fullam, Sr. J.

March 30th, 2004

The three above-captioned actions arise from a common set

of facts, and have, in effect, been consolidated. Civil action

01-3894 will be referred to herein as "Romero I"; civil action

01-6764 will be referred to as "Romero II,” and civil action

01-7042 will be referred to as "EEOC." This opinion deals

with pending motions in all three cases.

I. FACTUAL BACKGROUND

For many years, Allstate Insurance Company hired, as its

employees, all of the agents who sold its insurance policies,

handled claims, etc. Management apparently came to believe

that its interests would be better served by agents who were

independent contractors, rather than employees. All newly-

retained agents thereafter were deemed to be independent

contractors. The employee-agents operated under one or the

other of two types of employment contracts, designated the

R830 and the R1500. The independent-contractor agents

operated under R3001 contracts (after a brief period of actual

employment, as trainees, under an R3000 contract).

Beginning in 1991, Allstate amended its pension plan,

allegedly in order to comply with the Tax Reform Act of

1986 and implementing IRS regulations, to make clear that

service as an independent-contractor agent under an R3001

contract would not be credited toward pension entitlements

or calculations. The amendments also made it more difficult

for covered employees to qualify for early retirement benefits

and phased-out certain particularly favorabie features of the

early retirement benefits (which had enabled some employees

to retire at age 55, but have their retirement benefits

calculated as if they had continued to work until age 63).

After having adopted the policy of hiring only independent

contractors in the future, Allstate also embarked upon a plan

to persuade employee agents to switch to independent-

contractor status, by offering financial inducements (e.g., a

payment of $ 5,000, and more generous commissicns on

sales). Although some employee-agents made the switch,

many others did not.

By 1999, the situation was as follows: of the approximately

15,000 agents nationwide, approximately 6,200 continued as

employee-agents, under either the R830 or the R1500

contract. In November 1999, Allstate announced its

"Preparing for the Future” Reorganization Plan, under

which the employment of all employee-agents would be

terminated as of June 30, 2000. Each such employee-agent

was offered a choice: if the agent signed a comprehensive

release, he or she could (1) sign an R3001 contract and

continue in the service of Allstate, (2) serve as an R3001

independent-contractor for a brief period, and then sell his or

her interest in their book of business to a buyer approved by

Allstate (frequently, another Allstate agent), or (3) sign an

R3001 contract but then immediately resign, in exchange for

severance pay amounting to one year's earnings, to be paid

monthly over a period of two years. Agents who refused to

sign the release were simply discharged as of June 30, 2000,

with little or no severance pay.

Confronted with these choices, most of the employee-agents

(99.7%) signed releases. Only 19 agents did not sign, and

several of their cases have been disposed of in the interim. As

of the present date, the parties estimate that there are 16

potential claimants who did not sign releases.

In Romero I, the 29 named plaintiffs seek to represent a class

which includes the 6,200 former employee-agents, to nullify

all of the releases, and to pursue a wide range of claims: for

breach of contract, for violations of the ADEA, ADA, Title

VII and ERISA. As can readily be seen from the foregoing

recital, the proposed class includes persons who did not sign

the release, persons who signed the release and continue in

the service of Allstate as independent contractors, persons

who sold their blocks of business to other agents and then

resigned, and persons who not only continue in the service of

Allstate as independent contractors, but who have purchased

blocks of business from retiring former agents. The class-

action issues will be addressed below.

In Romero IL, plaintiffs seek to represent a class of persons

whose rights under ERISA were allegedly violated by the

changes in the pension pian, and by their changes in status.

Ir its case, the EEOC contends that requiring the employee-

agents to release all their claims under the ADEA, the ADA

and Title VII in order to continue working as sales agents

constituted retaliation in violation of § 4d of the ADEA, §

503a of the ADA, and § 704a of Title VII, and also

constituted interference, coercion, and intimidation in

violation of § 503b of the ADA. Attached to the EEOC

complaint is a list of the 300-odd persons who filed charges

with the EEOC - on whose behalf, presumably, the EEOC

brought its lawsuit.

II. DISCUSSION

A. Validity of the Releases

An overarching issue in all of these cases is the validity and

enforceability of the releases signed by most of the affected

employee-agetits. Obviously, if the releases are enforceable,

only the 16 remaining agents who did not sign the releases

could possibly prevail in this litigation. Defendants contend

that this issue is not appropriate for class treatment, because

of the conflicting interests of the putative class members,

many of whom have no desire to be restored to the status quo

ante. I believe, however, that the issue can properly be

addressed on a class-wide basis by way of a declaratory

judgment. That is, if the releases are found to be

unenforceable, a declaratory judgment to the effect that they

are voidable at the option of each class member would

benefit those who wish to sue Allstate, without harming those

who choose not to do so. |

I conclude, further, that the releases : so ld indeed be

voidable at the option of the employ agent. In the first

place, the releases, on their face, violate § 626 of the Older

Workers’ Benefit Protection Act, 29 U.S.C. § 626

("“OWBPA") and 29 C.F.R. § 1625.22(i)(2), which provides

"no waiver agreement may include any provision prohibiting

any individual from ... filing a charge or complaint, including

a challenge to the validity of the waiver agreement, with

EEOC."

Allstate contends that it had no intention of precluding the

filing of charges, and notes that more than 300 employee-

agents did file charges with the EEOC, without any

repercussions. The difficulty with this argument, however, is

that we have no way of knowing how many other employee-

agents failed to pursue charges before the EEOC simply

because they accepted the release language at face value.

Moreover, as the EEOC points out, it is illegal to either

retaliate, or threaten to retaliate, against an employee to

prevent him from exercising rights under the EEOC, Title

Vil, ADEA, ADA, etc. Those employees who did not sign

releases were in fact treated less favorably than those who

did sign, and the signers had all been threatened with such an

outcome if they exercised their right to refuse to sign the

proposed release.

I conclude, therefore, that the releases are voidable. -

Defendants’ motion for summary judgment with respect to all

claims by persons who signed releases will therefore be

denied, and plaintiffs’ motion for partial summary judgment

on that issue will be granted, to the extent of a declaratory

judgment as discussed above.

B. Substantive Issues

Entering declaratory judgment to the effect that the signed

releases are voidable at the option of the signing employee

does not, of course, signify that any of the employees

actually have valid claims to assert. It is therefore appropriate

to consider whether any of the claims asserted in the various

complaints are subject to summary dismissal. i have

concluded shat some of them dre indeed vulnerable to

dismissal.

1. ADEA Claims

I have concluded that, on the undisputed facts of record, there

is no basis for claims of age discrimination, for the simple

reason that employees of all ages were treated alike. An

employer who visits adverse consequences upon all

employees, irrespective of age, cannot be held liable for age

discrimination. The fact, if it is a fact, that many of the

affected employees, or even a majority, are within the

protected age group, is irrelevant. On this point, I agree with

the November 25, 2003 decision of Judge Herndon in the

related case of Isbell and Schneider v. Allstate Insurance Co.,

(U.S.D.C. Southern District of Illinois, No. 01-cv-00252).

2. The Claims in Romero I

To the extent that the plaintiffs in Romero II complain about

the amendments to the pension plan made in 1991, 1994, and

1996, their complaint, filed December 20, 2001 is, on its

face, time-barred. To the extent that they lost pension

entitlements when they became independent contractors or

former employees, that consequence «vould be an element of

damages if they establish that their change of status was a

breach of contract or otherwise illegal - claims which are

being asserted in Romero I and thie EEOC action. I conclude

that Romero II should be dismissed in its entirety.

3. Breach of Contract

If, as Allstate contends, the employment of all employee-

agents was terminable at will, then Allstate's action in

terminating all those contracts on June 30, 2000 was entirely

permissible. Plaintiffs contend, on the other hand, that the

R830 and R1500 contracts were not at-will, but only

terminable for cause. They note that the reviewprc: dures

specified in the R830 contract clearly prevents at-will

terminations, and that the same provisions were included in

the manual which accompanied the R1500 contracts. The

present record does not permit resolution of this issue on

summary judgment. Although the language of the two forms

of contract was drafted by Allstate, and ambiguities should

be resolved in favor of the employees, it is also possible that

parol evidence not yet in the record may shed light upon the

issue.

4. Allstate's Counterclaim

In its counterclaim, Allstate seeks damages against the

persons who signed releases, to the extent that they have, or

may in the future, sue Allstate, contrary to the terms of the

releases. Inasmuch as I have determined that the releases are

voidable, plaintiffs’ motion for summary judgment

dismissing the counterclaim will be granted. Allstate's later

motion for leave to amend its counterclaim will be dismissed

as moot.

C. Class Action Issues

In accordance with the foregoing discussion, I will certify a

class under 23(b)(2) with respect to the voidable releases, so

that any former employee-agent who signed such a release

may, by notifying Allstate in writing within 90 days,

effectively resciiid the release (including, of course,

repayment of all sums received in exchange for the release).

If a sufficiently large number of agents rescind their releases,

plaintiffs may apply for certification of a Rule 25(b\X3) class,

when the contours of such a putative class will have been

clarified.

A class consisting of the 16 remaining persons who did not

sign releases will be certified, under Rule 23(b\(3), with

respect to all issues not summarily disposed of herein. In all

other respects, plaintiffs’ applications for class certification

will be denied without prejudice to a later motion for class

certification, in accordance with the views expressed above.

The accompanying Order is intended to implement the views

expressed above.

ORDER

AND NOW, this day of March 2004, IT IS ORDERED:

1. Civil Action No. 01-6764 ("Romero II") is dismissed with

prejudice.

2. In all other respects, defendants' motion for summary

judgment is denied.

3. The motions for partial summary judgment filed by

plaintiffs in Civil Acticz NO. 01-3894 ("Romero I") and the

EEOC in Civil Action No. 01-7042, are granted, to the extent

of the declaratory judgment being entered as a separate

document.

4. Plaintiffs' motion to dismiss defendant's counterclaim is

granted. Defendant's counterclaim is dismissed with

prejudice.

5. Defendant's motion for leave to file an amended

counterclaim is dismissed as moot.

6. Counsel for plaintiffs shall submit a proposed order

certifying a Rule 23(b\3) class consisting of those former

employee-agents who did not sign releases.

7. Except as above set forth in this Order, all pending

motions are dismissed.

John P. Fullam, Sr. J.

DECLARATORY JUDGMENT

AND NOW, this 30th day of March 2004, IT IS ORDERED,

ADJUDGED AND DECLARED that:

1. The releases signed by the former employee-agents of

Allstate Insurance Company pursuant to the "Preparing for

the Future” Reorganization Plan are voidable at the option of

the persons who signed the releases.

2. Each employee-agent who signed such a release may

rescind the release by taking the following action: within 90

days after receiving notice of this Order, notifying Allstate

Insurance Company, in writing, of his or her wish to rescind

the release, and, within 30 days thereafter, tendering to

Allstate Insurance Company repayment of any and all

benefits received by the signer in exchange for signing the

release.

3. Counsel for plaintiffs in the above-captioned actions shall

submit to this Court for approval a proposed form of notice

implementing the foregoing.

John P. Fullam, Sr. J.

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

October 11, 2005

Before:

Hon. Richard D. Cudahy, Circuit Judge

Hon. Daniel A Manion, Circuit Judge

Hon. Terence T. Evans, Circuit Judge

No. 04-2310

Doris Isbell, Plaintiff-Appellant,

Allstate Insurance Company, Defendant-Appellee.

ORDER

On consideration of the petition for rehearing en banc filed

by petitioner-appellant, no judge in active service has

requested a vote on the petition for rehearing en banc, and all

of the judges on the original panel have voted to deny

rehearing. The petition is therefore DENIED.

U.S. EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Kansas City Area Office

400 State Avenue, Suite 905

(913) 551-5655

TTY (913) 551-5657

FAX (913) 551-6956

Charge No. 280A01133

Doris Isbell

365 Bunker Hill Road

Belleville, IL 62221

Charging Party

vi;

Allstate Insurance Company

North Plaza

2775 Sanders Road

Northbrook, IL 60062

Respondent

DE ATION

I issue the following determination on the merits of the this

charge.

Respondent is an employer within the meaning of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C.

2000e; et seq., (“Title VII’); the Age Discrimination in

Employment Act of 1967, as amended, 29 U.S.C. 621 et seq.,

and the Americans with Disabilities Act, 42 U.S.C. 12101 et

seq., (“ADA”). All requirements for coverage have been met.

Charging Party alleges that Respondent required that all

employee-agents sign a waiver and release of all claims

against Respondent, including all claims under Title VII, the

ADEA and the ADA, in order to (1) remain as an insurance

agent for Respondent, (2) receive an enhanced severance

benefit upon the termination of their employment, or (3) to be

able to sell their economic interest in their book of business.

Charging Party also alleges that employee-agents who failed

to sign the release and waiver were not allowed to continue

as insurance agents for Respondent.

Respondent maintains that it implemented a reorganization of

its business in order to convert all of its employee insurance

agents to independent contractors. The reorganization was

titled “Preparing for the Future Group Reorganization

Program (the “Program”). Under the Program, Respondent

acknowledges that in exchange for the employee-agents

release and waive of all their claims under the ADEA, the

ADA, and Title VIL, (as well as other claims not enforced by

the Commission) the agent could elect to become an

exclusive independent contractor agent for Respondent

(Option 1), convert to an exclusive independent contractor

agent status and sell the economic or other interest in their

book of business, (Option 2), or elect enhanced severance

pay including reimbursement for expenses after the close of

the agent’s office (Option 3). Respondent admits that

employee agents who did not sign a release and waiver were

not allowed to continue as insurance agents for Respondent

and would receive Respondent’s 1:ormal severance benefits.

It is undisputed that employee-agents who did not sign a

release and waiver which included their claims under Title

VII, the ADEA and the ADA by June 1, 2000, were not

allowed to continue as an insurance agent for Respondent

after July 1, 2000. The refusal of employee agents to release

their claims under Title VIL, the ADEA and the ADA and

also constitutes the unlawful interference, coercion and

intimidation in the exercise and enjoyment of rights granted

by the ADA.

Moreover, Respondent’s threat to its employee-agents that

they wouid lose their careers and livelihoods as insurance

agents with Respondent if they did not release and waive

their claims under Title VII, the ADEA and the ADA,

constitutes unlawful retaliation against those individuals who

signed releases and also constitutes the unlawful interference,

coercion and intimidation in the exercise and enjoyment of

rights granted by the ADA.

Upon finding that there is reason to believe that a violation

has occurred, the Commission attempts to eliminate the

alleged unlawful practice by informal methods of

conciliation. Therefore, the Commission now invites you to

join with it in a just resolution of this matter. Disclosure of

information obtained by the Commission during the

conciliation process will be made in accordance with Section

1601.26 of the Commission’s Procedural Regulations.

If Respondent declines to discuss settlement or when, for any

other reason, a settlement acceptable to the Office Director is

not obtained, the Director will provide this information and

advise of the court enforcement alternative available to

aggrieved person and the Commission.

A Commission representative will contact the Parties in the

near future to begin conciliation.

On Behalf of the Commission:

SEP 19 2000 s/ Lynn Bruner

Date Lynn Bruner

District Director

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.