UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS Cause No. 01-CV-252 Judge David R. Herndon Magistrate Judge Gerald B. Cohn DORIS ISBELL, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. ______________________________ MEMORANDUM OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND IN OPPOSITION TO DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT ___________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission (“EEOC”) is charged by Congress with the interpretation and enforcement of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (“ADEA”), and other federal statutes prohibiting employment discrimination and retaliation. Effective enforcement of these statutes depends on employees' willingness both to file charges of discrimination with the EEOC and to bring private employment discrimination suits. Veprinsky v. Flour Daniel, Inc., 87 F.3d 881, 889 (7th Cir. 1996). The EEOC is therefore particularly concerned about employment policies that might coerce employees into relinquishing claims that these statutes were violated. At issue in this case is a reorganization scheme devised by the defendant which required incumbent sales agents to execute a global waiver and release absolving the employer of liability for all claims arising out of their employment, including claims of employment discrimination, if they wanted to continue to work as sales agents for the defendant. Employees who refused to sign the waiver and release, including the plaintiff in this action, were denied the opportunity to work for the defendant. Because of the chilling effect such a policy would have on effective enforcement of federal law, the EEOC offers its views to this Court. INTRODUCTION The issue before this Court on these cross-motions for partial summary judgment is whether an employer may sever an employee's relationship with the company solely because she refuses to waive and release all employment-related claims that she may have against that employer. In the fall of 1999, Allstate required all of its incumbent employee-agents to choose either to forfeit any and all claims they might have against the company, including claims of employment discrimination, and continue to pursue their careers as Allstate agents, or to retain their claims but at the price of terminating their relationship with Allstate. Having already filed an ADEA charge, as well as a claim for workers compensation, Isbell chose the latter course; as a result, she lost her livelihood. As we explain more fully below, Isbell's refusal to waive and release her claims under the ADEA and other federal employment discrimination statutes constitutes protected activity under those statutes. By taking an adverse action against her -- essentially firing her -- because of that activity, Allstate violated the anti-retaliation provisions of the ADEA and other federal employment discrimination statutes. STATEMENT OF FACTS Doris Isbell was employed as an Allstate insurance agent from 1985 until her discharge on June 30, 2000, when she was 52 years old. In November 1999, Allstate announced that it was terminating its employer-employee relationship with all 6500 incumbent employee-agents as of June 30, 2000, explaining that the company had decided that it would be more efficient and profitable to market insurance through what it called “Exclusive Agency independent contractors.”<1> Defendant's Appendix, Exhibit (“DEx”) 1, at 3. As the company intended to continue selling insurance products, however, it needed the employee-agents, who had extensive sales experience and client bases, to continue working as Allstate agents. Accordingly, the company concurrently urged all 6500 employee-agents to “convert” to the “Exclusive Agency Program.” See, e.g., Plaintiff's Exhibit (“PEx”) 12 (Allstate's Field VP's letter to Isbell) (“I sincerely hope that you choose to continue your career as an Allstate Agent because, quite simply, we need you!”). As a prerequisite for “conversion,” however, the company required that agents sign a global waiver and release of claims under state and federal law; the document specified that agents agreed to absolve Allstate of liability for all employment-related claims, including claims under the ADEA, Title VII and the ADA, and, moreover, to waive all benefits they would otherwise be entitled to from any claim filed or pursued, for example, by the EEOC on their behalf. See DEx1, Attachment A, at 000032; PEx4 (General Release & Waiver Agreement).<2> Agents who refused to sign the agreement would be fired, effective June 30, 2000. See, e.g., PEx11 (“Failure to meet this requirement will result in the termination of your employment effective June 30th . . . .”). In addition, because the company had previously exacted a non-compete agreement from its employee-agents, they would also be barred, at least temporarily, from pursuing a career selling competing insurance products. See PEx18 (“remind[er]” that under non-compete agreement, agent could not solicit competing insurance business for one year after termination). Decisions concerning the release had to be made by June 1, 2000. See PEx11. Isbell had filed a worker's compensation claim against Allstate in the spring of 2000. She also believed that Allstate's waiver and release requirement as well as the elimination of the employee-agent position violated federal employment discrimination law. She therefore filed a charge with the EEOC in May 2000 and refused to sign the waiver and release. PEx13 (letter); PEx17 (charge). As a result, her career as an Allstate agent ended on June 30, 2000. In April 2001, Isbell filed suit alleging that Allstate's reorganization plan violated the ADEA and that firing her for refusing to sign the waiver and release violated the anti-retaliation provisions of federal employment-discrimination statutes as well as state law. The parties filed cross-motions for partial summary judgment on the retaliation claims, which are now pending before this Court. ARGUMENT ALLSTATE VIOLATED THE PROHIBITION ON RETALIATION IN THE ADEA, TITLE VII AND THE ADA WHEN IT REQUIRED ISBELL TO WAIVE AND RELEASE HER EMPLOYMENT DISCRIMINATION CLAIMS IN ORDER TO CONTINUE SELLING ALLSTATE INSURANCE. Doris Isbell's 15-year career selling insurance for Allstate came to an end because she would not agree to waive her claims under the ADEA and other federal employment discrimination statutes. Section 4(d) of the ADEA, however, makes it unlawful for an employer to “discriminate against any of his employees . . . because such individual . . . has opposed any practice made unlawful by [§ 4 of the ADEA], or because such individual . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under [the ADEA].” 29 U.S.C. § 623(d). Title VII and the ADA contain similar prohibitions against retaliation. 42 U.S.C. § 2000e-3 (Title VII); 42 U.S.C. § 12203 (ADA). To establish a violation of § 4(d) and the anti-retaliation provisions of the other federal employment discrimination statutes, a plaintiff must show that her employer took adverse action against her because she engaged in activity protected by these provisions. See, e.g., EEOC v. Board of Governors, 957 F.2d 424, 427-28 (7th Cir. 1992) (plaintiff must show that her protected activity resulted in adverse action by employer).<3> Allstate admits, as it must, that Isbell was not permitted to “continue [her] career as an Allstate agent” (PEx12) after June 30, 2000, solely because she would not sign the waiver and release. Notwithstanding Allstate's arguments to the contrary, this conduct violates the anti-retaliation provisions of the ADEA and other federal employment discrimination laws. A. Allstate Unlawfully Retaliated Against Isbell By Firing Her For Refusing To Sign The Waiver And Release. While conceding the underlying conduct, Allstate steadfastly maintains that it acted lawfully. Principally, the company argues that Isbell has not shown that she suffered an adverse action because of her protected activity. According to Allstate, its November 1999 decision to terminate her old “employment contract” pre-dates Isbell's protected activity, and, therefore, she cannot establish that her “termination” was caused by her refusal to release her claims. In addition, Allstate argues, the opportunity to continue working as an Allstate agent was a “severance benefit,” offered to “terminated” employee-agents, and, as such, Allstate was free to condition it on agents' willingness to waive and release discrimination claims. Allstate asserts that the “offer of a new contract” as an Exclusive Agency independent contractor was beneficial, and, therefore, the denial of that “benefit” to employees unwilling to release employment discrimination claims was not an “adverse action.” See generally Defendant's Motion for Partial Summary Judgment (“MPSJ”) at 7-11, 13-15, Reply at 6-9. Each of these arguments is seriously flawed. Allstate's contention that Isbell cannot show the necessary causal link to protected activity because her status as an employee-agent was terminated before she engaged in protected activity is disingenuous. The adverse action Isbell challenges in her retaliation claims is the denial of the opportunity to continue to work as an Allstate agent after the conversion from employee-agents to independent contractor-agents. Allstate's own reorganization materials, as well as the letters Allstate sent to all employee-agents including Isbell, make plain that employees could continue working as Allstate agents after June 30, 2000 -- the company needed their good will and experience for its ongoing insurance business. See, e.g., PEx12 (“I sincerely hope that you choose to continue your career as an Allstate Agent because, quite simply, we need you!”); see generally DEx1, Attachment A. The only condition was that they sign the waiver and release, forfeiting their rights and claims under federal employment discrimination law. Agents who would not agree to this condition -- and only those agents -- were, in effect, fired -- their relationship with the company was severed and they were barred from acting as Allstate agents. See, e.g., PEx11 (“Failure to meet this requirement will result in the termination of your employment, effective June 30th.”). Accordingly, Isbell was foreclosed from taking advantage of the opportunity to continue to work as an Allstate agent only after – and because – she engaged in protected activity by refusing to waive her employment discrimination claims. Allstate's contention that the opportunity to continue working constitutes a “severance benefit” does violence to the English language and ignores the reality of the situation. In essence, Allstate is asking the court to view as a “severance benefit” its offer not to sever its relationship with individuals choosing to “continue [their] career[s] as an Allstate Agent.” As the term implies, “severance benefits” are paid to individuals who are severing their relationship with the company altogether, not those who, in Allstate's words (see, e.g., PEx12), are simply “converting” from employee to independent contractor status. See Sly v. P.R. Mallory & Co., 712 F.2d 1209, 1211 (7th Cir. 1983) (severance benefits are “generally intended to tide an employee over while seeking a new job”). Indeed, Allstate's reorganization materials use the term “severance” in this traditional sense, limiting the option of “enhanced” or “base” “severance” pay to employee-agents leaving the company on or before June 30, 2000. Compare DEx1, Att.A, at 000066 (“Election of the Separation Option,” specifying “enhanced severance payment” for release signers, “base severance payment” for non-signers); with 00031 (discussion of “conversion” options, for agents who “Convert to R3001S Agreement,” does not say “severance”); cf. 000048 (agents choosing conversion options are ineligible for “separation” pay). The opportunity to continue working as an Allstate agent – which Allstate denied Isbell because of her protected activity – is, in reality, the exact opposite of a severance benefit. As for whether its “offer of a new contract” was beneficial or adverse, Allstate again is simply playing with words. MPSJ at 13-14. We take no position on the relative merits of the old and new contracts. However, withholding the opportunity to enter into a new contractual relationship from persons who engaged in protected activity clearly constitutes an adverse action. The company defends its conduct, arguing it was not required to offer agents the independent-contractor position, but that is simply wrong. Once an employer decides to offer a particular benefit or privilege to its employees, the ADEA and other federal employment discrimination statutes prohibit offering that benefit or privilege in a discriminatory or retaliatory manner. This is true even if the employer could have chosen not to provide the privilege or benefit at all. See Hishon v. King & Spalding, 467 U.S. 69, 75 (1984) (“A benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free . . . not to provide the benefit at all.”); Board of Governors, 957 F.2d at 430 (“Although [employer] would be free not to provide grievance proceedings, the ‘participation clause' of Section 4(d) prohibits the employer from providing grievance proceedings only if an employee refrains from participating in activity that is protected under the ADEA.”). Hishon is particularly relevant here. The employer in Hishon was a law firm that allegedly discriminated on the basis of sex in considering associate attorneys for partnership. The firm was not legally obligated to consider its associates for partnership at all. Moreover, it was assumed that when the associates became partners, they ceased being employees and were no longer protected by Title VII.<4> In spite of these facts, the Supreme Court held that the firm could not discriminate in how it considered its associates for partnership. 467 U.S. at 75. Similarly, here, Allstate was not obligated to offer independent-contractor status to its employee-agents, and once they became independent contractors, they arguably would no longer be protected by federal law. Like the defendant in Hishon, however, Allstate was not free to offer this privilege in a way that violated federal law. Clearly, Allstate could not “offer a new contract” only to male agents, for example, while withholding such an offer from female agents. It likewise could not withhold the offer from agents because they refused to agree not to exercise rights under the discrimination laws. To support its position, Allstate relies on an unpublished Sixth Circuit decision holding that, after laying off an employee during a RIF, the employer did not commit unlawful retaliation when it conditioned an offer of reemployment on his willingness to drop his discrimination suit. See MPSJ at 14-15 & Reply at 5 (citing Graves v. Fleetguard, 1999 WL 993963, at *5 (6th Cir. Oct. 21, 1999))(“‘Since Fleetguard had no duty to offer Graves any further employment, its failure to make such an offer would not have been an adverse employment action. Certainly, then, Fleetguard's offering him a position, but with a condition attached, was not an adverse employment action.'”). Even if it were precedential (which it patently is not), Graves would be distinguishable because there the plaintiff's job was eliminated entirely in a RIF and the employer offered him another job during settlement negotiations in an effort to resolve the lawsuit he had brought challenging his termination. Here, in contrast, Allstate did not offer Isbell the “new contract” to settle her private claim; it made a blanket offer to all employee-agents whether or not they had claims against the company. Nor was Isbell RIF'd –- her work was not eliminated; her status as an “employee-agent” was. Accordingly, Allstate's conduct in this case cannot fairly be analogized to Graves, because the offer to Isbell was not made as a settlement of any claim she had asserted. On the contrary, it was made pursuant to Allstate's express policy of continuing its relationship with all of its employee-agents except those who refused to sign away their rights.<5> Allstate asserts, however, that this Court should sanction its “conditional proposal of employment” because “public policy encourages the settlement of employment discrimination claims.” MPSJ at 15. As plaintiff points out, following this reasoning to its logical conclusion, employers could regularly condition continued employment on employees' willingness to sign periodic waivers and thereby avoid all employment discrimination claims. Allstate responds that agents were not offered the “same” position but rather a “new and fundamentally different” one. Reply at 7. In fact, the record reflects that the work was not fundamentally different; both before and after the reorganization, the agents worked selling Allstate insurance. Allstate itself informed agents that, if they signed the waiver, they could “continue” their “careers” as Allstate agents. In any event, as noted above, it would make no difference if the work were materially different as long as Allstate placed discriminatory conditions on its offer. See Hishon, 467 U.S. at 75; Curl v. Reavis, 740 F.2d 1323 (4th Cir. 1984) (conditioning promotion on plaintiff's dropping EEOC charges constitutes retaliation). In the analogous context of voluntary early retirement incentives, the Seventh Circuit has clarified what employers may and may not do. According to the Court, to the extent an early retirement program provides employees with a potentially attractive option they would otherwise not have, employers may offer employees incentives to take early retirement and require persons who accept the offer to sign a release. Employers may not, however, force employees to accept such offers or penalize those who decline the offer; such individuals are entitled to continue working without discrimination. See, e.g., Solon v. Gary Community School Corp., 180 F.3d 844, 850 (7th Cir. 1999) (“Provided the employee may decline the offer and keep working under lawful conditions, the offer makes him better off. . . . He may retire, receive the value of the package, and either take a new job (increasing his income) or enjoy new leisure. He may also elect to keep working and forfeit the package.”) (quoting Henn v. National Geog. Soc'y, 819 F.2d 824, 826 (7th Cir. 1987)); Karlen v. City Colleges of Chicago, 837 F.2d 314, 317 (7th Cir. 1988) (ADEA violation if individual experiences discrimination for refusing to take proffered early retirement). Allstate employee-agents did not have that second option. While the company offered severance pay, with or without the release, those who refused that offer could not simply go on working even though there was ample work available selling Allstate insurance. Instead, to continue on as Allstate agents, they had to sign the waiver and release. The clear import of Solon and similar cases is that such a requirement is unlawful. Finally, Allstate argues that it did not single Isbell out for discriminatory treatment but rather subjected all employee-agents to the same conditions. MPSJ at 10. Similarly, the company asserts, it acted for business reasons and had no retaliatory intent. See MPSJ at 3; Reply at 8. This merely confirms that the company had a retaliatory policy. Board of Governors makes clear that, regardless of the employer's intent, “[s]ection 4(d) prohibits policies that penalize employees who exercise their statutory rights under the ADEA.” See 957 F.2d at 431; see also id. at 427 (“Nothing in § 4(d) requires a showing of intent in retaliatory policy cases. To the contrary, § 4(d) is concerned with the effect of discrimination against employees who pursue their federal rights, not the motivation of the employer who discriminates.”). Since it penalized employees who exercised – or refused to waive the right to exercise – their statutory rights under federal employment discrimination laws, Allstate's policy was prohibited under § 4(d) and the other anti-retaliation provisions. Allstate attempts to distinguish Board of Governors, arguing that, under the policy there, employees had a “pre-existing right” to a particular complaint procedure that they lost when they filed a charge whereas employee-agents here had no comparable right to be Exclusive Agency independent contractors. MPSJ at 15 n.5.<6> This is a distinction without a difference. Like the employer in Board of Governors, Allstate withheld a benefit provided to all other employees from individuals who engaged in protected activity, expressly because of that protected activity. Its conduct, no less than the conduct of the employer in Board of Governors, violated federal law. B. Isbell Engaged In Protected Activity When She Refused to Waive and Release Her Employment Discrimination Claims. Although the question has not been addressed at length by either party, this Court should also hold that Isbell engaged in protected activity when she refused to waive and release her claims under federal employment discrimination law. The anti-retaliation provisions of the ADEA and other federal employment discrimination statutes broadly protect employees who participate in any way in proceedings under these statutes. The language and intent of these provisions compel the conclusion that Isbell engaged in protected activity when she refused to sign the waiver and release that Allstate demanded as a condition to “continu[e]” her “career” as an Allstate agent. See PEx12. As noted above, the anti-retaliation provisions of the ADEA, Title VII and the ADA make it unlawful for an employer “to discriminate against any of his employees or applicants for employment” because the individual has “opposed any practice made an unlawful employment practice” or has “filed a charge, testified, assisted, or participated in any manner in an investigation [or] proceeding” under these statutes. 29 U.S.C. § 623(d) (ADEA); 42 U.S.C. § 2000e-3 (Title VII); 42 U.S.C. § 12203 (ADA).<7> As the Seventh Circuit has stressed, these provisions should be construed broadly. See Veprinsky, 87 F.3d at 888-89 (construing “employees” to include “former employees” to effectuate statute's remedial purpose). Broad protection is essential because individual employees play a “significant role” in the enforcement of the ADEA, Title VII and the ADA, both by filing charges alerting the EEOC to possible discrimination and by bringing private discrimination lawsuits. See id. at 888. Fear of reprisal would deter individuals from asserting their rights and, so, limit the EEOC's ability to remedy violations. The provisions therefore are designed to ensure both that “no person [is] deterred from exercising his rights . . . by the threat of discriminatory retaliation,” EEOC v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993), and that “unfettered access to statutory remedial mechanisms” is maintained. Robinson v. Shell Oil Co., 519 U.S. 346, 346 (1997). See also EEOC v. Waffle House, 122 S. Ct. 754, 765 n.11 (2002) (expressing reluctance to construe discrimination statutes so as to lessen individuals' willingness to file charges). While the anti-retaliation provisions do not expressly state that refusing to release or waive rights and benefits under federal employment discrimination law is protected activity, the logic of the sections and the Congressional purpose behind them strongly indicate that such activity is protected. The plain terms of these provisions prohibit employers from discriminating against employees for filing a charge or lawsuit; courts have held that the protection also extends to employees who have only threatened to file a charge or lawsuit. See, e.g., EEOC v. L.B. Foster, 123 F.3d 746, 754 (3d Cir. 1997) (plaintiff engaged in protected activity when she informed her supervisor that she intended to file charge); Gifford v. Atchison, Topeka & Santa Fe Railway, 685 F.2d 1149, 1156 n.3 (9th Cir. 1982) (writing letter to employer and union threatening to file EEOC charge is protected); see also Aviles v. Cornell Forge Co., 183 F.3d 598, 603 (7th Cir. 1999) (charge need not specify that alleged protected activity was threat to file charge, rather than charge itself). Employers similarly may not force an employee to drop a charge or lawsuit alleging employment discrimination in order to keep her job. See Curl, 740 F.2d 1323 (retaliation when employer conditioned promotion on plaintiff's dropping EEOC charges); cf. Johnson v. Palma, 931 F.2d 203, 208 (2d Cir. 1991) (retaliation when union conditioned willingness to proceed with union grievance on withdrawal of charge); Brock v. Casey Truck Sales, 839 F.2d 872, 879 (10th Cir. 1988) (FLSA retaliation provision prohibits firing employees for refusing to release claims for overtime pay); Marshall v. Parking Co. of America-Denver, 670 F.2d 141, 142 (10th Cir. 1982) (same, regarding refusal to release backpay claim). Consistent with the broad interpretation due the anti-retaliation provisions, this Court should hold that individuals such as Isbell who refuse to sign a waiver or release are likewise protected from reprisal. Since employees may not be penalized either for filing a charge or lawsuit alleging employment discrimination or for refusing to withdraw such a charge or suit, it would make no sense to hold that such individuals may nonetheless be penalized for refusing to absolve the employer of liability for the alleged discriminatory conduct or to waive the right to benefit from any action the EEOC might bring challenging that same discrimination. There can be no doubt that such a narrow interpretation of “protected activity” would chill employees' willingness to file charges and assert their statutory rights. Cf. Casey Truck Sales, 839 F.2d at 879 (“Protection against discrimination for instituting FLSA proceedings would be worthless if an employee could be fired for declining to give up the benefits he is due under the Act.”). We therefore urge this Court to hold that Allstate violated federal discrimination law in denying Isbell the opportunity to continue marketing Allstate policies solely because she refused to waive and release her rights under federal discrimination law. Isbell's motion for partial summary judgment should be granted and Allstate's motion should, correspondingly, be denied. CONCLUSION For the foregoing reasons, this Court should grant Plaintiff's motion for partial summary judgment and deny Defendant's motion for partial summary judgment. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel _________________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF SERVICE I certify that one copy of the attached Brief of the Equal Employment Opportunity Commission as Amicus Curiae were served this 26th day of April, 2002, by first-class mail, postage pre-paid, to the following counsel of record: Laura B. Allen JoDee Favre Favre & Allen 1301 North Northlake Way, Suite B2 Seattle, WA 98103 Stephen H. Rovak Michael M. Godsy SONNENSCHEIN NATH & ROSENTHAL One Metropolitan Square, Suite 3000 St. Louis, MO 63102 Richard C. Godfrey Sallie G. Smylie Donna M. Welch Jane S. Park KIRKLAND & ELLIS 200 East Randolph Drive Chicago, IL 60601 __________________________ 1 We assume, for purposes of this memorandum, that sales agents who continued under Allstate's new agency contracts were, in fact, independent contractors. Whether they were or, instead, remained employees is immaterial to our arguments. 2 Agents were also given two other options, both of which required that they sign the waiver and release. They could leave the company with “enhanced severance pay” (“separation option”) or “convert” to the Exclusive Agency Program (forgoing severance pay), immediately sell their “book of business” to an approved buyer and then leave the company (“sale of entire book option”). DEx1, Attachment A, at 000061, 000066. 3 Allstate suggests that this Court's decision in Stone v. City of Indianapolis, 281 F.3d 640 (7th Cir. 2002), creates a “new rule for the adjudication of retaliation claims.” MPSJ at 6-7. Stone, however, does not change the basic elements of a retaliation claim -- protected activity resulting in adverse action -- identified in Board of Governors. See Stone, 281 F.3d at 643. The “new rule” articulated in Stone concerns only the evidence required to raise an inference of causation. See id. at 643-44. That is not an issue here since Allstate's own reorganization materials and letters supply that element: they expressly state that employee-agents will not be permitted to continue selling Allstate insurance unless they sign the waiver and release. See, e.g., DEx1, Attachment A, at 000032 (only option available to agents who do not sign release is “base severance pay”; conversion to Exclusive Agency Program requires “signing the Release”). 4 The question of whether partners in a law firm are covered employees under Title VII and other employment discrimination statutes depends on the particular circumstances of a given partnership. See EEOC v. Sidley & Austin, 2002 WL 206485 (N.D. Ill. Feb. 12, 2002) (Lefkow, J.) (attached) (appeal pending). 5 Allstate's reliance on DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 734 (3d Cir. 1995), is likewise misplaced. See MPSJ at 13-15. In DiBiase, the Third Circuit held that an employer did not discriminate on the basis of age by offering the same benefits package to all RIF'd workers even though workers over 40 were required to release potential age claims that younger workers did not have. The Court reasoned that the total package of rights under all statutes was not presumptively worth more for older than for younger workers. See id. (comparing rights of younger black worker with stellar performance record with those of incompetent older white worker). Unlike this case, DiBiase did not involve a claim of retaliation; the plaintiff alleged only age discrimination. Moreover, although Allstate's citation of the case implies otherwise, DiBiase did not involve a “conditional proposal of employment.” MPSJ at 14. On the contrary, like the plaintiff in Graves but unlike Isbell, the plaintiff in DiBiase had been RIF'd. The issue was only what benefits he would depart with, not, as here, whether he would be required to depart at all. 6 Allstate's discussion of this point ends with a non-sequitur. The company states, “Thus, Board of Governors does not apply in this context where enhanced severance benefits are being offered.” As noted above, however, only in Wonderland can the opportunity to continue working be considered a “severance benefit.” 7 The language of the ADA provision is broader than that in Title VII or the ADEA since it forbids employers not only to discriminate on the basis of protected opposition or participation (42 U.S.C. § 12203(a)) but also to “coerce, intimidate, threaten or interfere with any individual in the exercise or enjoyment of . . . any right granted or protected by” the ADA, § 12203(b) -- conduct the ADEA and Title VII prohibit only implicitly. While subsection (b) clearly covers Allstate's policy, this case also fits easily within the scope of the three statutes' opposition and participation clauses since Isbell informed Allstate that she believed the waiver requirement violated federal law, filed a charge and refused to sign the agreement.