PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ___________

                     No. 14-2700
                     ___________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
                         Appellant

                           v.

        ALLSTATE INSURANCE COMPANY
                  __________

    On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
                 (D.C. No.2-01-cv-07042)
    District Judge: Honorable Ronald L. Buckwalter
                       ___________

             Argued January 14, 2015
    Before: HARDIMAN, SCIRICA and BARRY,
                 Circuit Judges.

               (Filed: February 13, 2015)
Paul D. Ramshaw [Argued]
Equal Employment Opportunity Commission
131 M Street, N.E.
Washington, DC 20507

C. Felix Miller
Equal Employment Opportunity Commission
1222 Spruce Street, 8th Floor
St. Louis, MO 63101

Iris A. Santiago-Flores
Equal Employment Opportunity Commission
801 Market Street, Suite 1300
Philadelphia, PA 19107
        Attorneys for Plaintiff-Appellant

Donald R. Livingston [Argued]
Akin, Gump, Strauss, Hauer & Feld
1333 New Hampshire Avenue, N.W., Suite 400
Washington, DC 20036

Katherine M. Katchen
Akin, Gump, Strauss, Hauer & Feld
2001 Market Street
Two Commerce Square, Suite 4100
Philadelphia, PA 19103

Richard C. Godfrey
Jordan M. Heinz
Sallie G. Smylie
Kirkland & Ellis
300 North LaSalle Street
Chicago, IL 60654




                            2
Erica Zolner
Kirkland & Ellis
601 Lexington Avenue
New York, NY 10022
       Attorneys for Defendant-Appellee

Rae T. Vann
Norris, Tysse, Lampley & Lakis
1501 M Street, N.W., Suite 400
Washington, DC 20005
       Attorney for Amici Curiae in Support of Defendant-
       Appellee
                       ____________

                OPINION OF THE COURT
                     ____________

HARDIMAN, Circuit Judge.
       This appeal comes to us following a summary
judgment entered by the United States District Court for the
Eastern District of Pennsylvania in favor of Allstate Insurance
Company. In 1999, Allstate decided to reorganize its business
and terminate the at-will employment contracts of some 6,200
sales agents, offering them the opportunity to work as
independent contractors. As a condition of becoming
independent contractors, agents were required to sign a
release waiving existing legal claims against Allstate. The
Equal Employment Opportunity Commission sued Allstate,
claiming that the company violated federal antiretaliation
laws. The District Court disagreed and the EEOC appealed.
We will affirm.




                              3
                               I
       As the District Court rightly noted, the history of this
case is “lengthy and convoluted.” Romero v. Allstate Ins. Co.,

, 332 (E.D. Pa. 2014). We won’t repeat that
history in full because it is so thoroughly explained in Judge
Buckwalter’s tour de force in Romero and in his opinion now
under review. See Romero v. Allstate Ins. Co. (EEOC), 3 F.
Supp. 3d 313 (E.D. Pa. 2014). Instead, we shall summarize
the facts relevant to this appeal.
                              A
       Over the past thirty years, Allstate has changed the
way it sells insurance. In the early 1980s, agents worked out
of Sears stores or company-owned offices under an
employment contract designated R830. Allstate introduced
the Neighborhood Office Agent Program in 1984, purportedly
because it faced “flat productivity and the aggressive use of
local independent contractor sales agents by its competitors.”
Allstate Br. 7. New agents hired pursuant to the
Neighborhood Program signed a contract designated R1500,
while existing agents had the choice of transferring to that
contract or continuing their employment under the R830
contract. The Neighborhood Program allowed agents to
secure their own office space, manage their own expenses,
and invest money in their agencies; it did not give them
transferable interests in their accounts, however, which
remained the property of Allstate. Under both the R830 and
R1500 contracts, Allstate agents were at-will employees and
were not entitled to any severance pay in the event that they
were “terminated under the terms of any group
reorganization/restructuring benefit plan or program[.]”

, 397–98.




                              4
       In 1990, the company introduced a third business
model, the Exclusive Agency Program, pursuant to which all
new Allstate agents worked as independent contractors under
a contract called R3001. In that capacity, Allstate agents had
transferable property interests in their books of business and
earned higher commissions than the R830 and R1500
employee agents, but they were neither reimbursed for office
expenses nor provided employee benefits. Existing employees
had the opportunity to apply to convert to independent
contractor status as part of the Exclusive Agency Program,
but they received no conversion bonus and had to repay any
outstanding office expenses advanced by Allstate. They did,
however, gain property rights in the accounts they serviced as
employee agents, which became transferable after five years.
       According to Allstate, the Exclusive Agency Program
emerged as the company’s most productive business model.
Meanwhile, a settlement between Allstate and the Internal
Revenue Service required Allstate to more closely supervise
the operations of its Neighborhood Program agents in order to
preserve their status as employees for tax purposes.
Concerned about the inefficiency of running several different
agency programs, Allstate decided to shift completely to the
independent contractor model and abandon the R830 and
R1500 programs. Accordingly, in November 1999, the
company announced its Preparing for the Future Group
Reorganization Program, pursuant to which some 6,200
employee agents would be terminated the following year.
      In connection with their termination, the employee
agents were offered four choices: (1) conversion to
independent contractor status (the Conversion Option); (2)
$5,000 and an economic interest in their accounts, to be sold
by September 2000 to buyers approved by Allstate (the Sale




                              5
Option) (3) severance pay equal to one year’s salary (the
Enhanced Severance Option); or (4) severance pay equal to
thirteen weeks’ pay (the Base Severance Option). Employees
who chose the Conversion Option received a bonus of at least
$5,000, were not required to repay any office-expense
advances, and acquired transferable interests in their business
two years after converting. All employees who chose not to
convert and left the company were bound by noncompetition
covenants in the original R830 and R1500 contracts.
       Allstate required those who selected any of the first
three options to sign a release of all legal claims against the
company related to their employment or termination,
including discrimination claims arising under Title VII of the
Civil Rights Act of 1964, the Age Discrimination in
Employment Act (ADEA), and the Americans with Disabilities




                              6
Act (ADA).1 The Release covered only claims that had
accrued by the time the terminated employees signed it, not

      1
          The Release stated:
      In return for the consideration that I am
      receiving under the Program, I hereby release,
      waive, and forever discharge Allstate Insurance
      Company, its agents, parent, subsidiaries,
      affiliates, employees, officers, shareholders,
      successors, assigns, benefits plans, plan
      administrators, representatives, trustees and
      plan agents (“Allstate”), from any and all
      liability, actions, charges, causes of action,
      demands, damages, entitlements or claims for
      relief or remuneration of any kind whatsoever,
      whether known or unknown, or whether
      previously asserted or unasserted, stated or
      unstated, arising out of, connected with, or
      related to, my employment and/or the
      termination of my employment and my R830 or
      R1500 Agent Agreement with Allstate, or my
      transition to independent contractor status,
      including, but not limited to, all matters in law,
      in equity, in contract, or in tort, or pursuant to
      statute, including any claim for age or other
      types of discrimination prohibited under the
      Age Discrimination in Employment Act of
      1967, Title VII of the Civil Rights Act of 1964,
      the Americans With Disabilities Act, the
      Employee Retirement Income Security Act
      (“ERISA”), the Illinois Human Rights Act, and
      the West Virginia Human Rights Act as those
      acts have been amended, or any other federal,



                                7
future claims, and it did not bar them from filing charges with
the EEOC, which many did. Almost all the terminated
employee agents signed the Release, and thousands of them
chose the Conversion Option.
                               B
        Despite Allstate’s efforts to avoid litigation, several
former employee agents filed individual and putative class
actions in the District Court seeking to invalidate the Release
and alleging discriminatory discharge, retaliation, ERISA
violations, breach of contract, and breach of fiduciary duty.

. The EEOC filed a civil action
of its own that sought a declaratory judgment invalidating the
Release on the ground that Allstate illegally retaliated against
its employee agents by allowing them to continue their
careers with the company only if they waived any
discrimination claims. 

Court granted
summary judgment to Allstate in both cases, 2007 WL

       state, or local law or ordinance or the common
       law. I further agree that if any claim is made in
       my behalf with respect to any matter released
       and waived above, I hereby waive any rights I
       may have with respect thereto and agree not to
       take any payments or other benefits from such
       claim. I understand that this release and waiver
       does not apply to any future claims that may
       arise after I sign this Release or to any benefits
       to which I am entitled in accordance with any
       Allstate plan subject to ERISA by virtue of my
       employment with Allstate prior to my
       employment termination date.
App. 379.



                               8
1811197 (E.D. Pa. June 20, 2007), but we vacated those
rulings because they were inadequately reasoned and
insufficiently supported by evidence in the record, 344 F.
App’x 785 (3d Cir. 2009) (per curiam). We remanded and
ordered that the cases be reassigned to a different district
judge and that the parties be permitted to conduct further
discovery. 

790.
        On remand, the district judge to whom the cases were
reassigned consolidated the cases for administrative purposes
and heard new motions for summary judgment. Romero, 1 F.
Supp. 3d at 360. In an opinion concerning the employee
agents’ claims, the District Court granted Allstate summary
judgment in part but held that trial was needed to determine
whether the Release was signed knowingly and voluntarily
and whether it was unconscionable. 

. In a separate opinion, the District Court granted Allstate
summary judgment in the Commission’s retaliation suit.

. The District Court rejected each
of the Commission’s theories of retaliation, holding that
Allstate’s requirement that agents choosing the Conversion
Option waive their claims was not facially retaliatory because
the policy did not discriminate on the basis of any protected
trait, 

and that Allstate had not specifically
retaliated against agents who spurned the Release because,
among other reasons, refusing to sign a release did not
constitute “protected activity” under the antiretaliation
statutes, 

The EEOC filed this timely appeal.


      2
          The Court also rejected theories of “anticipatory
retaliation,” 

–35, and coercion, 

see 42 U.S.C. § 12203(b). The Commission conceded
at oral argument that these claims are not at issue on appeal.



                              9
                               II
      The District Court had subject matter jurisdiction
under 28 U.S.C. §§ 1331 and 1345. Our jurisdiction is based
on 28 U.S.C. § 1291.3
        Exercising plenary review over the District Court’s
summary judgment, we will affirm only if, viewing “the
underlying facts and all reasonable inferences therefrom in
the light most favorable to the party opposing the motion,” we
conclude that a reasonable jury could not rule for the
nonmoving party. Blunt v. Lower Merion Sch. Dist., 

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

, 236 (3d Cir. 1995)).
                              III
       Title VII, the ADEA, and the ADA proscribe
discrimination in employment based on several personal
characteristics. See 42 U.S.C. § 2000e-2(a) (race, color,
religion, sex, national origin); 29 U.S.C. § 623 (age); 42

       3
         The District Court’s summary judgment was an
appealable “final decision” despite the pendency of the
Romero matter because that case was consolidated with the
EEOC’s action for administrative purposes only. See 

. Although we follow a “case-by-case
approach” in determining whether a final order in one of
multiple consolidated cases is immediately appealable,
Bergman v. City of Atlantic City, 

, 566 (3d Cir.
1988), our precedents indicate that immediate appeal in one
case is appropriate when the cases have not been
“consolidated for discovery and trial or for all purposes,” id.;
see Bogosian v. Gulf Oil Corp., 

, 441 (3d Cir.
1977).



                              10
U.S.C. § 12112 (disability). They also prohibit employers
from retaliating against employees who oppose or complain
about discriminatory treatment. See Burlington N. & Santa Fe
Ry. Co. v. White, 

(2006). The antiretaliation
provisions “are nearly identical,” and “precedent interpreting
any one of these statutes is equally relevant to interpretation
of the others.” Fogleman v. Mercy Hosp., Inc., 

,
567 (3d Cir. 2002). Employers may not “discriminate against
any individual because such individual has opposed any act or
practice made unlawful by [the employment-discrimination
statutes] or because such individual made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing” under the employment-discrimination
statutes. 42 U.S.C. § 12203(a) (ADA); see also 42 U.S.C.
§ 2000e-3(a) (Title VII); 29 U.S.C. § 623(d) (ADEA). A
prima facie case of illegal retaliation requires a showing of
“(1) protected employee activity; (2) adverse action by the
employer either after or contemporaneous with the
employee’s protected activity; and (3) a causal connection
between the employee’s protected activity and the employer’s
adverse action.” 

–68 (quoting
Krouse v. Am. Sterilizer Co., 

, 500 (3d Cir.
1997)).
       The EEOC offers a few reasons why we should hold
that Allstate unlawfully retaliated against its terminated
employee agents. First, the Commission contends that the
Release does not fall within the well-established rule that
employers can require releases in exchange for post-
termination benefits. EEOC Br. 21–24. Second, it argues that
Allstate’s conduct was per se retaliatory because the company
“withh[e]ld a privilege of the employees’ employment—the
offer in the conversion option to continue their careers as
Allstate agents—if they refused to release all their claims.”



                              11


Alternatively, the EEOC claims Allstate retaliated
against the employee agents who refused to sign the Release
by denying them the option to continue their careers with the
company as independent contractors. According to the
Commission, the holdouts’ refusal to waive their claims
constituted “protected opposition activity” that prompted
Allstate to withhold the Conversion Option, an adverse
employment action. 

We first address the general
validity of agreements like Allstate’s Release before turning
to the Commission’s two theories of retaliation.
                             A
       It is hornbook law that employers can require
terminated employees to release claims in exchange for
benefits to which they would not otherwise be entitled. See,
e.g., Mark A. Rothstein et al., 2 Employment Law § 9.22 (5th
ed. 2014). Nothing in the employment-discrimination statutes
undermines this rule—in fact, Congress enacted detailed
requirements governing employee releases of ADEA claims
in the Older Workers Benefit Protection Act of 1990
(OWBPA). 29 U.S.C. § 626(f); see Oubre v. Entergy
Operations, Inc., 

, 426–27 (1998). Title VII and
ADA claims are likewise subject to waiver by terminated
employees. See Alexander v. Gardner-Denver Co., 

, 52 (1974) (“[P]resumably an employee may waive his
cause of action under Title VII as part of a voluntary
settlement[.]”); Rivera-Flores v. Bristol-Myers Squibb
Caribbean, 

, 12 (1st Cir. 1997) (“We conclude that
such releases are permissible under the ADA[.]”). The EEOC
concedes, as it must, the legality of such releases. EEOC Br.
17, 20–21, 23; Reply Br. 1, 13.
      But even when particular requirements have not been
imposed by statutes like the OWBPA, releases can be invalid




                             12
for various reasons. For example, they must be knowingly
and voluntarily signed4 and cannot waive future claims.5 In
addition, an employee who signs a release must receive
consideration in return. See, e.g., 29 U.S.C. § 626(f)(1)(D);
Long v. Sears Roebuck & Co., 

, 1538 (3d Cir.
1997); Rothstein, supra, § 9.22.
       The EEOC begins by arguing that the well-settled rule
that releases of claims are generally valid does not apply to
the situation presented in this appeal. EEOC Br. 21. The
Commission’s argument goes like this: the only consideration
adequate for a release of claims is “severance benefits,” and
Allstate’s offer of an option to sell insurance as an
independent contractor does not qualify because the employee
agents “were not terminated in any normal sense.” 

23 (“[T]he conversion option was not a ‘severance’ benefit,
but rather the opportunity [for the agents] to continue their
Allstate careers.”). There are a few problems with the
Commission’s postulate.
      For starters, the notion that the Conversion Option was
inadequate consideration for the Release is remarkably

      4
        See 

n.15. This issue
remains pending in the Romero case. 

Section I-B.
      5
         See Adams v. Philip Morris, Inc., 

, 585
(6th Cir. 1995) (“An employer cannot purchase a license to
discriminate.”); Rothstein, supra, § 9.22; see, e.g., Gardner-

–52 (“[A]n employee’s rights under
Title VII are not susceptible of prospective waiver.”).
Allstate’s Release did not purport to waive future claims. See
App. 379 (“I understand that this release and waiver does not
apply to any future claims that may arise after I sign this
Release[.]”).



                             13
counterintuitive. The EEOC concedes that the Sale Option
and the Enhanced Severance Option, both of which also
required the employees to sign the Release, were valid. 

It nevertheless contends that the Conversion Option—
which was chosen by the vast majority of the terminated
agents—was illegal. According to the Commission, Allstate
could have complied with the antiretaliation statutes by
simply firing all its employee agents for good, instead of
giving them the opportunity to sell Allstate insurance in a
different capacity. We are confident that federal laws
designed to protect employees do not require such a harmful
result.
        Second, the Commission’s argument that the
Conversion Option was inadequate consideration for the
Release is contrary to the undisputed facts of this case. The
EEOC suggests that Allstate gave the terminated agents
essentially nothing in exchange for releasing their claims. See
EEOC Br. 23–24 (“[T]he Program, instead of offering them
severance benefits, required them to release all their claims
against the company in order to continue performing the same
services for Allstate that they had been performing for
decades.”). In fact, each employee agent who signed the
Release did so in exchange for something “in addition to
anything of value to which the individual already [was]
entitled[.]” § 626(f)(1)(D). The agents were entitled to neither
continued employment (because they were at-will employees
under the R830 and R1500 contracts) nor severance pay
(because they were terminated pursuant to a group
reorganization program). Moreover, even though Allstate
allowed employee agents to convert to independent-
contractor status during the decade preceding the 2000
restructuring, the Conversion Option was significantly more
advantageous because it: (1) offered guaranteed conversion,



                              14
whereas Allstate had previously retained discretion to deny
conversion; (2) came with a bonus; (3) excused repayment of
any outstanding office-expense advances; and (4) gave the
converting agent a transferable interest in his or her business
after two years, rather than five. See id.; Allstate Br. 39. Thus,
it is clear that Allstate’s Conversion Option offered
terminated employee agents something of value to which they
were not otherwise entitled.
        Finally, the EEOC admits that it knows of not “a single
decision holding that it is unlawful for an employer to require
its employees to release all their claims in order to continue
working for the company.” EEOC Br. 25. Nevertheless, it
claims that Allstate is similarly bereft of authority supporting
its position—except for one case, Isbell v. Allstate Insurance
Co., 

(7th Cir. 2005), which it accuses Allstate
of misreading. EEOC Br. 25. There, Doris Isbell was
terminated pursuant to Allstate’s reorganization plan and
refused to sign the Release, opting for the Base Severance
Option. 

–92. She sued Allstate for
retaliation, but the Seventh Circuit rejected her claims. 

The EEOC rightly notes that Isbell does not carry the
day for Allstate here insofar as the Seventh Circuit rejected
Isbell’s retaliation claims on the ground that she was not
terminated for discriminatory reasons, which is inapposite to
the Commission’s claim that Allstate’s contingent offer of
conversion was discriminatory retaliation. See 

EEOC Br. 26–27. Nonetheless, we note that the Seventh
Circuit expressly acknowledged Isbell’s retaliation theory,
which mirrored the EEOC’s theory here, and found it lacking.
See 

(“Allstate did not retaliate against
Isbell when it refused to hire her [as an independent
contractor] after she refused to sign a release of liability.”).




                               15
       Like Isbell, the EEOC here fails to articulate any good
reason why an employer cannot require a release of
discrimination claims by a terminated employee in exchange
for a new business relationship with the employer. We
acknowledge the Commission’s concerns about the prospects
of employers trading releases for new business opportunities
and terminated employees facing “financial pressure” when
offered such a deal. EEOC Br. 32. But the EEOC fails to
explain why this financial pressure is more offensive to the
antiretaliation statutes than the pressure one is bound to feel
when required to sign a release in exchange for severance
pay.6 In sum, we are not persuaded by the Commission’s
efforts to arbitrarily limit the forms of consideration
exchangeable for a release of claims by a terminated
employee.
                               B
       Having determined that Allstate’s conduct conformed
with the settled rule that employers can exchange
consideration for releases of claims, it is unsurprising that the
Commission’s theories of retaliation are invalid. The
Commission posits that Allstate violated the antiretaliation
statutes first by creating a policy that employee agents who

       6
        The Commission also fails to show that its nightmare
scenario—employers using a cycle of layoffs, releases, and
rehiring to immunize themselves from suit—is a valid
concern. See EEOC Br. 24–25. There is no indication that
American employers have done or will do this to insulate
themselves from the employment-discrimination laws,
probably because such schemes would destroy employee
morale, compromise business goodwill, and serve little
economic purpose.



                               16
refused to sign the Release would not be permitted to
continue their Allstate careers, and then by enforcing this
policy and actually withholding the Conversion Option from
those agents. Under both theories, the EEOC alleges that the
“protected employee activity” in question was the refusal to
sign the Release and the associated “adverse action by the
employer” was Allstate’s withdrawal of the Conversion
Option.7 

. In fact, the EEOC has
established neither protected activity nor an adverse action.
        The antiretaliation statutes identify two forms of
protected employee activity: “oppos[ing] any act or practice
made unlawful by” the employment-discrimination laws and
initiating or “participat[ing] in any manner in an
investigation, proceeding, or hearing under” those laws. E.g.,
42 U.S.C. § 12203(a). The Commission argues that refusing
to sign a release constitutes opposition to unlawful
discrimination, but we disagree. In our view, such inaction
does not communicate opposition sufficiently specific to
qualify as protected employee activity. See EEOC v.
SunDance Rehab. Corp., 

, 501 (6th Cir. 2006)
(expressing skepticism that declining to sign a release could

      7
         The Commission occasionally wavers by suggesting
that the real adverse action was the termination of the
employee agents—or at least that their termination was
functionally equivalent to withdrawal of the Conversion
Option. See, e.g., EEOC Br. 35. We recognize that dismissing
an employee qualifies as “adverse action” in common
parlance, but the relevant action for retaliation purposes was
the denial of conversion to the agents who refused to sign the
Release.




                             17
be protected activity); see also Barber v. CSX Distrib. Servs.,

, 702 (3d Cir. 1995) (“A general complaint of
unfair treatment does not translate into a charge of illegal age
discrimination.”). Because Allstate’s Release barred its
signatories from bringing any claims against Allstate
concerning their employment or termination, employee agents
who refused to sign it might have done so for any number of
reasons unrelated to discrimination. Indeed, as Allstate notes,
the plaintiffs in the Romero case brought claims for breach of
contract and breach of fiduciary duty. Allstate Br. 51.
Accordingly, the EEOC cannot show that any adverse action
taken by Allstate was triggered by opposition to unlawful
discrimination, dooming its retaliation case at the outset.
       Even had the Commission been able to establish
protected activity, its argument would fail for lack of an
adverse employment action. As we have mentioned, the
terminated agents were not entitled to convert to independent
contractor status. 

Section III-A. And the
Commission has cited no legal authority for the proposition
that an employer commits an adverse action by denying an
employee an unearned benefit on the basis of the employee’s
refusal to sign a release. There is significant support,
meanwhile, for the opposite proposition. See 

(collecting cases).
        The EEOC leans heavily on EEOC v. Board of
Governors, 

(7th Cir. 1992), but that case only
clarifies the Commission’s failure in this case to satisfy the
two essential retaliation elements just discussed. In Board of
Governors, the Seventh Circuit invalidated a provision of a
collective bargaining agreement that suspended an
employee’s contractual right to an internal grievance
proceeding as soon as the employee initiated a judicial or




                              18
administrative proceeding concerning his grievance. 

The Court held that the CBA provision violated the
ADEA’s antiretaliation provision because it authorized the
employer to strip an employee of a “contractual right” and
adversely alter a “condition of his employment” whenever the
employee sought relief under the ADEA in an external forum.

In that case, the Commission identified a clear
protected activity (i.e., initiating a discrimination charge in an
external forum) and paired it with an employer action that
deprived employees of something to which they were entitled
(i.e., suspending the right to internal grievance proceedings).
The EEOC fails to muster the same showing here, which
makes all the difference.
                               IV
        In offering each of its employee agents the Conversion
Option, Allstate followed the well-established rule that
employers can require terminated employees to waive
existing legal claims in order to receive unearned post-
termination benefits. The EEOC has neither given us reason
to craft an exception to this rule nor articulated a valid
retaliation claim under the relevant statutes. We therefore
hold that Allstate did not violate the federal antiretaliation
laws by requiring that employee agents sign the Release in
order to avail themselves of the Conversion Option.
Accordingly, we will affirm the judgment of the District
Court.




                               19