_______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________________________________________ Nos. 07-4460, 07-4461 & 08-1122 _______________________________________________________ Gene R. Romero, et al., Plaintiffs - Appellants, v. Nos. 07-4460 & 07-4461 Allstate Insurance Company, et al., Defendants - Appellees. _______________________________________________________ Equal Employment Opportunity Commission, Plaintiff - Appellant, v. No. 08-1122 Allstate Insurance Company, et al., Defendants - Appellees. _______________________________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania _______________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4737 Paul.Ramshaw@eeoc.gov TABLE OF CONTENTS Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Certificate of Compliance With Type-Volume Limitation, Typeface and Type- Sytle Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Certificate of Identically Filed Briefs. . . . . . . . . . . . . . . . . . 19 Certificate of Virus Check. . . . . . . . . . . . . . . . . . . . . . . . 19 Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . 20 TABLE OF AUTHORITIES FEDERAL CASES Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). . . . . . . . . . . . . . . 17 Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). . . 1, 7 Cohen v. West Haven Board of Police Commissioners, 638 F.2d 496 (2d Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 In re Continental Airlines, Inc., 279 F.3d 226 (3d Cir. 2002). . . . . . . . . 8 Graves v. Fleetguard, Inc., No. 98-5893, 1999 WL 993963 (6th Cir. Oct. 21, 1999) . . . . . . . . . . . . . . . . . . . . . . . 15 Hishon v. King & Spalding, 467 U.S. 69 (1984). . . . . . . . . . . . . . 3-4, 13 Isbell v. Allstate Insurance Co., 418 F.3d 788 (2005). . . . . . . . . . . 14-16 Massachusetts v. Bull HN Information Systems, Inc., 16 F. Supp. 2d 90 (D. Mass. 1998). . . . . . . . . . . . . . . . . . 12 Robinson v. Shell Oil Co., 519 U.S. 337 (1997). . . . . . . . . . . . . . . 7 FEDERAL STATUTES 29 U.S.C. § 623(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 42 U.S.C. § 2000e-3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 42 U.S.C. § 12203(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARGUMENT In June of 2000, Allstate terminated all 6200 of its employee agents. At the same time, the company took away from the employee agents the opportunity they previously had of being considered for conversion to independent-contractor status without signing a release of all claims. As a result, the only way employee agents could continue working as Allstate agents was to sign a release and apply for independent-contractor status. The EEOC brought this action alleging that Allstate violated the anti-retaliation provisions of the ADEA, Title VII and the ADA by barring employee agents from continuing to earn their living as Allstate agents unless they sign a release. In our opening brief we argued that the district court erred in granting Allstate's motion for summary judgment. We pointed out that, under the anti- retaliation provisions, it is unlawful for an employer to take an adverse action against an employee or a former employee because he has filed a charge or sued the employer for discrimination or retaliation. See EEOC Br. at 10, 13; Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006). We noted that courts have consistently held that it is also unlawful for an employer to retaliate against an employee because he refuses to withdraw a charge or a lawsuit he had previously filed or because the employee has threatened to file a charge or a lawsuit. See EEOC Br. at 15-16 (citing cases). We therefore urged this Court to hold that, when an employer bars an employee from continuing his career with the employer unless he releases all his claims, as Allstate did here, it violates the anti- retaliation provisions. See EEOC Br. at 9, 16-21. We argued that the employees' refusal to sign the release is protected activity because, under these circumstances, it is an implicit threat to sue. See EEOC Br. at 15-16. In its appellee brief, Allstate argues that the district court correctly granted summary judgment because the EEOC failed to establish either element of a retaliation claim. First, Allstate argues that refusal to sign a release can never constitute "protected activity" within the meaning of the anti-retaliation provisions. Allstate Br. at 33-34. The company also argues that, for several reasons, its refusal to consider persons who refused to sign releases for independent-contractor status was not an adverse action. Id. at 38-43. Allstate also points to purported factual distinctions between this case and the cases we relied on in our opening brief. In this reply brief we explain why the distinctions alluded to by Allstate do not affect the analysis in our opening brief. We also note that, if this Court accepts Allstate's contention that refusing to sign a release is never protected activity even where the consequence is the termination of an individual's career with an employer, employers could evade the strictures of federal employment discrimination laws by requiring employees to periodically sign releases in consideration for continued employment. 1. We argued in our opening brief that, because employee agents were offered the opportunity to apply for independent-contractor status before November 1999, that opportunity was a privilege of employment as an Allstate agent that could not be withheld on a discriminatory or retaliatory basis. EEOC Br. at 10-12 (citing Hishon v. King & Spalding, 467 U.S. 69, 75 (1984). Allstate offers several responses to this argument; none has merit. First, Allstate points out that the opportunity offered to employee agents in 2000 was in some respects more favorable than the opportunity previously offered. Allstate Br. at 18-19, 42-43. This response would have some force if in 2000 employee agents retained the earlier opportunity to apply for independent-contractor status without signing a release, but could obtain more favorable terms by signing a release. If that were the case, then the employee agents would not have been forced to sign a release in order to continue their careers. But it is undisputed that the opportunity to seek independent-contractor status without signing a release was withdrawn in November 1999 when the challenged program was announced. Accordingly, the fact that the opportunity offered to those who signed a release might have been better than the opportunity previously offered to agents without requiring a release is irrelevant to the EEOC's argument. Allstate also argues that the EEOC's argument fails because employee agents did not have an absolute right to become independent contractors. Allstate Br. at 42. This misses the point. The plaintiff in Hishon did not suggest that, as an associate at King & Spalding, she had a contractual right to become a partner. She argued only that a privilege of her employment as an associate was the opportunity to be considered for partnership based on her performance and not her gender. The Supreme Court agreed. 467 U.S. at 75. Here, the employee agents had a similar privilege of employment during the 1990s: an opportunity to be considered for independent-contractor status based on their performance. Before 2000, Allstate considered employee agents' conversion applications without demanding that they give up their statutory rights, but after November 1999 the company allowed employee agents to convert only if they first released all their claims. Allstate also emphasizes the difference in legal status between employee agents and non-employee independent contractors (Allstate Br. at 18-19, 46), but the company fails to explain why this matters. What does matter is that from almost every other viewpoint the employee agents who converted to independent- contractor status continued doing the same job they had been doing before. JA 1457 (Harper dep. at 60-61) ("I [and the other] employee agents . . . were being terminated and then offered the job to do exactly the same job in exactly the same location under exactly the same sign on the same computer with the same customers using the same amount of paperwork as I did when I was an employee."). 2. Allstate argues that a decision accepting the EEOC's position in this case would outlaw all releases of employment discrimination claims. Allstate maintains that, if it is unlawful for an employer to condition an employee's job or livelihood on signing a release of all claims, then it would necessarily also be unlawful for an employer to condition enhanced severance benefits on signing a release, because there is no legally significant difference between receiving enhanced benefits and being able to continue earning one's living. Allstate Br. at 32, 44-45, 47. In arguing that there is no meaningful distinction between denying someone monetary benefits and preventing him from continuing his career, the company relies on a narrow and literal-minded interpretation of the anti-retaliation provisions. The ADEA's anti-retaliation provision makes it unlawful "for an employer to discriminate against any of his employees . . . because such individual . . . has opposed any practice made unlawful by this section, or because such individual . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter." 29 U.S.C. § 623(d). Title VII and the ADA contain very similar prohibitions. 42 U.S.C. §§ 2000e-3(a) & 12203(a). This language could be read to prohibit an employer from withholding any benefit, including a monetary benefit, from an individual because he refuses to sign a release, even if the benefit is offered as consideration for the release. In our opening brief, we disavowed that extreme reading of the statute, recognizing that the courts have uniformly rejected the argument that it is unlawful for an employer to withhold enhanced severance benefits from individuals who will not sign a release, in light of the strong public policy in favor of voluntary resolution of employment discrimination disputes. EEOC Br. at 9, 23-24. However, we argued, in light of the equally strong policy against retaliation for asserting rights under federal anti-discrimination statutes, this principle should not be extended to a situation like this, where an employer conditions an individual's opportunity to continue his career on signing a release. Allstate rejects the notion that this Court can construe the anti-retaliation provisions to condone the withholding of monetary consideration from individuals who will not sign a release while prohibiting an employer from conditioning an individual's future employment on the signing of a release. According to the company, the Court must choose between two extreme options and hold either that an employer may never condition any benefit on signing a release, including enhanced severance benefits, or that it is never unlawful for an employer to take an adverse action against an individual because he will not release employment discrimination claims, even if the employer conditions continued employment on the release. We submit that the Court can and should distinguish between these very different scenarios. The Supreme Court has repeatedly admonished the lower courts to interpret prohibitions on retaliation flexibly to accomplish their vital purpose. See Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (anti-retaliation provisions should not be construed to "allow[ ] the threat of . . . retaliation to deter victims" from exercising their statutory rights, but should instead be construed to further "a primary purpose of antiretaliation provisions: Maintaining unfettered access to statutory remedial mechanisms"); Burlington N., 548 U.S. at 67 ("Interpreting the anti-retaliation provision to provide broad protection from retaliation helps assure the cooperation upon which accomplishment of the Act's primary objective depends."). We believe that courts can and should construe the anti-retaliation provisions in a way that is consistent with the policy of prohibiting practices that coerce individuals into giving up their rights under anti-discrimination statutes as well as the policy favoring voluntary resolution of employment discrimination disputes by distinguishing between conditioning enhanced severance benefits on signing a release and demanding releases from employees under threat of depriving them of their livelihoods. There is a fundamental difference between receiving payments for two years (Allstate's option 3) and having a job or a way to earn one's living (its option 1). A job or livelihood will usually provide "future income" for more than two years.<1> More important, having a job or a livelihood is important to one's identity and sense of self-esteem and self-worth. See, e.g., In re Continental Airlines, Inc., 279 F.3d 226, 230 (3d Cir. 2002) (quoting employees' argument that "mere money damages" were insufficient to compensate for loss of "work - a life-long career - with all its tangible and intangible benefits, such as . . . a secure retirement, the self-esteem and self-worth derived from a job well done, [and] the emotional fulfillment of career advancement"). Implicit in Congress's adoption of the ADEA and the other statutes prohibiting employment discrimination is the belief that one's livelihood is a particularly important thing to protect. Furthermore, there is evidence in this case that the potential loss of the opportunity to continue selling Allstate insurance was particularly severe. During the years they were employees, the employee agents made substantial investments in their agencies. Allstate provided each employee agent an annual "office expense allowance" that they could use to defray their operating expenses (such as staff salaries, rent, utilities, advertising, etc.),<2> but that allowance rarely was sufficient to cover their operating expenses, and the agents had to pay the balance out of their pockets.<3> There is evidence that Allstate managers encouraged the agents to expand their operations - by hiring (additional) staff, purchasing more advertising, and upgrading their offices, equipment and décor.<4> Many employee agents had family members working in their agencies for years for little or no pay.<5> Some employee agents invested hundreds of thousands of dollars in their agencies.<6> The employee agents were willing to invest substantial amounts of money in significant part because Allstate had led them to believe that they had lifetime positions with the company, with very favorable benefits.<7> Allstate's decision to terminate its employee agents and preclude them from continuing to sell Allstate insurance unless they released all their claims threatened to deprive them of their livelihood. They had been earning their living by selling (and servicing) Allstate products - and only Allstate products<8> - to (and for) their clients. If they became independent contractors, they would be doing the same thing.<9> Taking away the opportunity to become an independent contractor deprived them of a business they had invested in heavily, and of the ability to continue earning a living by selling and servicing Allstate products. For one or even two years, they were barred from selling any insurance products to any of their active former clients, selling any insurance products from an office located within a mile of their former agencies, and from even continuing to use their former business telephone numbers.<10> Since the impacts of being deprived of their livelihoods and their investments were so severe, many employee agents believed that they were being forced to sign the release.<11> Under Allstate's interpretation of the anti-retaliation provisions, it can never be unlawful retaliation to treat an individual adversely because he refuses to sign a release no matter the circumstances. Allstate Br. at 20-21, 23-25, 32, 44-45. Allstate and its amici maintain that nothing an employer does to an individual because he did not sign a release can violate the anti-retaliation provisions as long as the individual has not yet filed a charge or a lawsuit or engaged in some other affirmative activity. Allstate Br. at 29-32; Amici Br. at 10-12. This interpretation would allow employers to engage in activities specifically designed to prevent their employees from participating in protected activity. If, for example, an employer imposed a policy stating: "If you file a discrimination suit against me, I will fire you as soon as I learn that you have done so," that policy, in Allstate's view, would be lawful as long as it was effective in intimidating employees into not filing a charge or otherwise opposing the policy as unlawful. According to Allstate, this employer would not be liable for violating the anti-retaliation provisions until (a) one of its employees finds the courage to violate the policy by filing a charge; and (b) the employer implements the policy by firing that employee. Similarly, as we argued in our opening brief (at 21), if Allstate's argument were accepted, an employer could terminate its entire workforce each payday and then immediately rehire only those employees who sign a release of all claims. Indeed, under Allstate's interpretation, this employer would presumably never be liable for retaliation. If an employee refuses to sign the release, the employer will refuse to rehire him, and that refusal to rehire will be motivated solely (in this hypothetical) by the employee's refusal to sign the release. But in Allstate's view, refusing to sign a release can never be protected activity, and firing someone (or refusing to rehire him) because he refused to sign a release could therefore never constitute retaliation. We urge this Court to reject an interpretation of the anti-retaliation provisions that would allow employers to effectively exempt themselves from liability under the anti-discrimination statutes by coercing their employees into releasing their claims by threatening their livelihood. See Massachusetts v. Bull HN Info. Sys., Inc., 16 F. Supp. 2d 90, 106 (D. Mass. 1998) (allowing employers to "functionally insulate themselves from ADEA suits" would "offend[ ] the intent of Congress in enacting" the statute). Allstate protests that its policy was different from the above hypothetical because, after converting to independent-contractor status, the former employee agents did not stay employees, but became independent contractors. Allstate Br. at 46. But this action challenges retaliation that occurred before they converted (if they did), not after they converted. Accordingly, just as in Hishon, 467 U.S. at 75, the mere fact that the employee agents who chose option 1 arguably became independent contractors (just as some of the associates in Hishon became partners) does not preclude Allstate from having retaliated against them while they were indisputably employees. Allstate also points out that while the employer in the hypothetical demanded that its employees sign releases every payday, Allstate did this only once. Allstate Br. at 46. But the company fails to explain why this matters. If it is unlawful to prevent one's employees from continuing their careers unless they release all their claims, it is as unlawful to do it once as it is to do it every payday. Allstate also contends that the releases that the hypothetical employer offers lack consideration. This is not true. The consideration each employee receives for signing the release is the employer's promise to rehire the employee and allow him to continue earning a living by working for the company, just as the consideration for the releases Allstate sought was the opportunity to continue selling Allstate insurance. Allstate contends that, in Isbell v. Allstate Insurance Co., 418 F.3d 788 (2005), the Seventh Circuit rejected the same claim advanced in this case, but the company's reading of Isbell is implausible. It is true that the Isbell court describes a claim similar to the claim the EEOC alleges,<12> but the court's decision does not resolve that claim. The remainder of the court's discussion of Isbell's retaliation claim relates solely to a claim that she was terminated because she would not sign a release. See Isbell, 418 F.3d at 793 ("Isbell was not a victim of retaliation. Her reason for termination was the same for all employees at Allstate who were similarly situated. . . . It is also clear that Isbell did not lose her job, because she refused to sign the Release. She lost her job for the same reason 6,400 other employee agents of Allstate lost theirs, including those who signed the Release - because Allstate had decided to eliminate all employee agent positions with the Company.") (emphasis in original). The sentence that Allstate quotes, Allstate Br. at 27, is simply a factual statement, referring to all three of the release- conditioned options, that "[a]n employee who refuses to sign a release will not be offered the same deal as a terminated employee who is willing to sign the release." 418 F.3d at 793 Thus, there is nothing in the Seventh Circuit's decision to support Allstate's assertion that the court rejected, or even considered, the argument made by the EEOC in this case.<13> Allstate also relies on Graves v. Fleetguard, Inc., No. 98-5893, 1999 WL 993963 (6th Cir. Oct. 21, 1999). But, in addition to being an unpublished decision by a different court, Graves is readily distinguishable. Fleetguard terminated Graves in a RIF, and he filed a charge alleging age discrimination. Id. at *1-2. Fleetguard then tried to settle Graves' charge by offering him a position as quality manager (a new position for Graves and a demotion) on the condition that he withdraw his charge. Id. at *2, 5. Graves refused the offer and sued, arguing that Fleetguard retaliated against him by offering him the quality manager position only on condition that he withdraw his charge. Id. at *4. The court rejected this claim both because Fleetguard had no obligation to offer Graves any position, let alone a position with no conditions, and because the job offer was a legitimate attempt to settle the dispute between the parties. Id. at *5. Graves did not argue - and could not have argued on those facts - that when Fleetguard fired him, the company intended to offer him continued employment (or an independent-contractor position) but only if he released all his claims, as happened here. The case is accordingly not relevant to the issue before this Court. Allstate asserts in its brief that the release "d[id] not prohibit a plaintiff from filing charges with the EEOC or filing suit in federal court." Allstate Br. at 35. This has certainly not been the company's consistent position,<14> but it is also not material. A release that prohibits any monetary recovery (and Allstate concedes that the release did this, Allstate Br. at 35) can be as effective in deterring the protected activity of suing as a covenant not to sue. See Isbell, 418 F.3d at 797 ("The Release . . . provides Allstate with an effective affirmative defense should a claim be raised."). Finally, we argued in our opening brief that the employee agents who signed the release and continued their careers as independent contractors were also victims of Allstate's unlawful scheme. EEOC Br. at 26-28. Allstate responds that these agents did not engage in a traditionally recognized protected activity, Br. at 29-32, a point we acknowledged in our opening brief (at 26). As discussed supra, however, Allstate offers no response to our argument that, if this Court agrees that it was unlawful for the company to require its employee agents to release all their claims before they could continue their careers as Allstate agents, then the agents who capitulated to the extreme pressure the company brought to bear and signed the release in order to preserve their agencies and their careers were equally victims of the scheme, and the releases they signed should be declared invalid. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975) (if court finds unlawful activity by defendant, court should normally provide all victims relief); Cohen v. West Haven Bd. of Police Comm'rs, 638 F.2d 496, 502 (2d Cir. 1980) ("In Title VII class litigation, once it has been established that an employment practice is unlawful, class members victimized by the discrimination become presumptively entitled to [relief]."). CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed, and the case should be remanded for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel /s/ Paul D. Ramshaw PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7040 Washington, D.C. 20507 (202) 663-4737 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE AND TYPE-SYTLE REQUIREMENTS (1) This reply brief complies with the word-count limit in Fed. R. App. P. 32(a)(7)(B) because, according to Word 2003's word-count feature, it contains 4,204 words, excluding the parts of the brief excepted by rule 32(a)(7)(B)(iii). (2) This brief complies with the typeface requirements of rule 32(a)(5) and the type- style requirements of rule 32 (a)(6) because it was prepared in 14-point Times New Roman font, which is proportionally spaced. September 8, 2008 /s/ Paul D. Ramshaw Paul D. Ramshaw Counsel for Appellant EEOC CERTIFICATE OF IDENTICALLY FILED BRIEFS Counsel for appellant EEOC certifies that the text of the electronically filed version of this brief is identical to the text of the hard copies of the brief filed with the Court. September 8, 2008 /s/ Paul D. Ramshaw Paul D. Ramshaw Counsel for Appellant EEOC CERTIFICATE OF VIRUS CHECK Counsel for appellant EEOC certifies that a virus check using Symantec AntiVirus version 9.0.3.1000 was performed on the electronic version of this brief on September 8, 2008, prior to electronic filing with the Court. September 8, 2008 /s/ Paul D. Ramshaw Paul D. Ramshaw Counsel for Appellant EEOC CERTIFICATE OF SERVICE I, Paul D. Ramshaw, certify that on September 8, 2008, the same day that I transmitted to the court an electronic version of the brief for appellant EEOC, I caused ten (10) printed and bound copies of the brief to be sent to the clerk of this Court, and electronic copies to the following counsel, who have agreed to accept electronic service: Counsel for Defendants-Appellees Edward F. Mannino, Esq. Mary K. Christodoulou, Esq. Katherine M. Katchen, Esq. AKIN GUMP STRAUSS HAUER & FELD LLP One Commerce Square 2005 Market Street, Suite 2200 Philadelphia, PA 19103 Richard C. Godfrey, Esq. Drew G.A. Peel, Esq. Jane S. Park, Esq. Sallie G. Smylie, Esq. Donna M. Welch, Esq. KIRKLAND & ELLIS LLP 200 E. Randolph Drive Chicago, IL 60601 Donald R. Livingston, Esq.* W. Randolph Teslik, Esq. AKIN GUMP STRAUSS HAUER & FELD LLP 1333 New Hampshire Avenue, N.W., Suite 400 Washington, DC 20036 Peter A. Bellacosa, Esq.* KIRKLAND & ELLIS LLP 153 East 53rd Street Citigroup Center New York, NY 10022 Counsel for the Romero I Plaintiffs: Michael Lieder, Esq. SPRENGER & LANG, PLLC 1400 Eye St., N.W., Suite 500 Washington, DC 20005 Michael J. Wilson, Esq. MORGAN, LEWIS & BOCKIUS LLP 111 Pennsylvania Ave., N.W. Washington, DC 20004 September 8, 2008 /s/ Paul D. Ramshaw Paul D. Ramshaw Counsel for Appellant EEOC *********************************************************************** <> <1> Allstate acknowledges that "terminated employees could well have viewed Allstate's offer in Option 1 as more valuable than cash options because it offered income over the long term as opposed to in a lump sum." Allstate Br. at 45. <2> JA 4900 (Hutton 6/00 aff. 5). <3> JA 1325 (Carrier dep. at 53); JA 1413 (English dep. at 138) ("I was spending every penny that I had to keep the doors open."); JA 1440 (Gafner dep. at 219-20). <4> JA 1325 (Carrier dep. at 49-50) ("You [Allstate] would consistently send us documents from your officers . . . telling us it was our business to invest in our business, . . . go get home equity loans. You told us this all the time."); JA 1496 (Kearney dep. at 106-09) ("just about all of the regional . . . sales management . . . [told him that he was] not spending enough money on [his] office expenses," including in his performance reviews); JA 1574 (Littlejohn dep. at 168) (he hired support staff "at the request and direction of Allstate"); JA 469 (Romero I docket no. 120 at 45, 15) (collecting record citations). <5> JA 1440 (Gafner dep. at 220) ("my wife and daughter worked for me for nothing"); JA 1616 (Moorehead dep. at 75) ("my wife . . . worked there for virtually no pay an awful lot of the time"); JA 469 (Romero I docket no. 120 at 45, 16) (collecting record citations). <6> JA 1336 (Carrier dep. at. 214-15) (invested more than $1 million in his agency); JA 1640 (Pilchak dep. at 136-37) (invested "a minimum of $150,000 out-of- pocket"). <7> JA 1362-63 (Carrier dep. at 225-27) ("I was told from day one that your compensation with Allstate is because of [sic] the incredible benefits package that Allstate provides for you [including a pension] . . . . [Y]ou had a job for life when you came to work for [Allstate]."); JA 1581 (Maslowski dep. at 48-49) (chose Allstate because "I was guaranteed lifetime commissions, lifetime renewals"). <8> Allstate's employee agents were captive agents. Allstate prohibited them from selling any other company's products. JA 1810 (Hutton 1/03 dep. at 76). <9> JA 1457 (Harper dep. at 60-61) (quoted supra at p. 4). <10> JA 3449 (R830 agreement, Part Four, art. XII); JA 3452 (R1500 agreement, art. 13). <11> JA 1338 (Carrier dep. at 230) ("You [Allstate] forced me to sign this [release] . . . . You were going to steal my business and fire me and all my people."); JA 1388 (Crease dep. at 213) ("I was forced to sign this release. My relationship with Allstate and my career as an insurance agent was being held hostage to the signing of this release."). <12> Isbell, 418 F.3d at 793 ("Isbell advances a novel theory of retaliation, claiming that Allstate retaliated against her when it refused her 'the opportunity to work for Allstate albeit under a different contract unless she signed the release.'"). <13> It should be noted that, although the EEOC participated in Isbell as amicus curiae in the district court, the Seventh Circuit denied our motion to participate on appeal. <14> See Isbell, 418 F.3d at 797 (Allstate argued that the release included a covenant not to sue, and sought damages for breach of covenant because plaintiff sued the company after signing the release); JA 1295 (Bever dep. at 206-08) (counsel for Allstate asked: "By signing this release, Mr. Bever, . . . [y]ou understood . . . you were telling Allstate I am not going to sue you for damages . . . ? . . . But you went ahead and sued Allstate . . . even though you promised that you wouldn't sue Allstate . . . ?"); JA 1396 (Crease dep. at 242) (counsel for Allstate asked: "[T]hen wouldn't you agree that, by filing this lawsuit challenging the termination, you have violated the express terms of the release?").