                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

Nos. 04-2310 & 04-2365
DORIS ISBELL and JAMES SCHNEIDER,
                                           Plaintiffs-Appellants,
                               v.


ALLSTATE INSURANCE COMPANY,
                                            Defendant-Appellee.
                        ____________
           Appeals from the United States District Court
                 for the Southern District of Illinois.
        Nos. 01 C 252 & 01 C 655—David R. Herndon, Judge.
                        ____________
    ARGUED JANUARY 19, 2005—DECIDED AUGUST 15, 2005
                        ____________




  Before CUDAHY, MANION, and EVANS, Circuit Judges.
   MANION, Circuit Judge. Doris Isbell and James Schneider
are former employees of Allstate Insurance Company
(“Allstate” or, the “Company”). After Allstate reorganized
its workforce and abolished their positions with the com-
pany, the two sued Allstate in the United States District
Court for the Southern District of Illinois. The suit alleged
(among other things) claims of discrimination and retal-
iatory discharge. The district court granted summary
2                                         Nos. 04-2310 & 04-2365

judgment in favor of Allstate with respect to all of these
claims, and in favor of Schneider with respect to Allstate’s
assertion of damages for its claim of breach of a contract by
Schneider. We affirm the district court’s summary judgment
in favor of Allstate on Isbell’s claims. We also hold, how-
ever, that Schneider did not breach his contract with Allstate
and thus reverse the district court’s grant of summary
judgment in favor of Allstate on that claim.


                                 I.
  In November 1999, Allstate announced a company-wide
plan to change the nature of its business relationship with
a significant number of the people who sold insurance for it.
The basic idea was that Allstate would no longer sell in-
surance through employees, known here as “employee
agents,” but would do so instead through a network of
                                   1
exclusive independent contractors. To accomplish this con-
version, the company decided to terminate, effective June
30, 2000, all of its approximately 6,400 employee
agents—regardless of age, productivity, or performance.


1
  The actual division of Allstate’s sales force prior to the reorga-
nization was somewhat more complicated than we have pre-
sented it here. There were, apparently, six types of contractual
relationships between Allstate and its sales force (Schneider and
Isbell each had a different class of contract with Allstate). In fact,
one of the reasons Allstate cites for its reorganization decision
was to cut down on the costs of administering these diverse
relationships.
  For our purposes, however, it is sufficient to say that prior to
the reorganization there were two broad categories of insurance
salespersons for the Company: independent contractors and
employee agents. The goal of the reorganization was to make all
of the Company’s sales force independent contractors.
Nos. 04-2310 & 04-2365                                      3

   Allstate did not, necessarily, seek to completely end its
relationship with the terminated employee agents. Allstate
offered each of the 6,400 employee agents, including Isbell
and Schneider, four options. The first two of these options
allowed an employee to enter into an independent contrac-
tor relationship with Allstate. Both options would grant the
new contractors the opportunity to have an economic inter-
est in the book of business they wrote for the company as
well as certain other benefits, including a $5,000 bonus and
the forgiveness of certain office expense advancements. The
first option (“Option One) envisioned a long-term rela-
tionship with the new contractor and the Company, while
the second option (“Option Two”) foresaw a transitory
relationship between the contractor and the Company—the
expectation was that the new contractor would sell his or
her book of business to an approved buyer (presumably
another Allstate contractor) and then leave the Company.
The third option (“Option Three”) was that the employee
could terminate its relationship with Allstate and receive a
year’s pay as severance. The fourth option (“Option Four”)
also included an immediate end to the parties’ business
relationship and a simple severance pay-out for up to thir-
teen weeks’ salary.
  The first three options offered by Allstate required the
terminated employee to sign a release (the “Release”) that
purported to waive any claim that an employee might have
against Allstate under the Age Discrimination in
Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (the
“ADEA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e (“Title VII”), the Americans with Disabilities Act, 42
U.S.C. §§ 12101 et seq., (the “ADA”), and the Employment
Retirement Income Security Act of 1974, 29 U.S.C. §§ 1140 et
seq. (“ERISA”). The Fourth Option did not require the
terminated employee to sign the Release. Thus, the key
4                                   Nos. 04-2310 & 04-2365

difference between Options Three and Four was that in
order to receive a year’s severance pay an employee had to
sign the Release. If an employee refused to sign the Release
he was entitled to the much briefer period of severance but
retained the right to bring suit against Allstate for any
claims he might have under the aforementioned statutes.
  Allstate gave each affected employee (including Isbell and
Schneider) a copy of the Release and information explaining
the implications of signing (and not signing) the Release.
Allstate also encouraged each employee to consult an
attorney before signing the Release.
   Isbell and Schneider were both informed of the termina-
tion decision in an employee meeting held by Allstate in
Collinsville, Illinois sometime in November or December
1999 (the record is not clear as to precisely when, but there
is no doubt that the two knew of their pending termination
no later than December 1999). In the meeting, employees
were told they would be fired in approximately six months
and the four options set forth above were explained. Isbell
and Schneider have both admitted that they knew that their
particular terminations were part of this program, that they
were not singled out for termination, and that they would
be terminated from their current positions regardless of
whether they signed the Release.
  Schneider signed the Release and chose Option Two after
meeting with an attorney who actually recommended that
Schneider not sign the release. By taking Option Two,
Schneider was given an economic interest in his book of
business which he subsequently sold to another Allstate
contractor for $120,000. Schneider also was given the $5,000
bonus and was forgiven a $1,000 debt with the company.
Schneider admits that Allstate complied with its end of the
bargain in all respects. Nevertheless, on December 14, 2000,
Schneider filed an EEOC charge alleging age discrimination
and retaliation.
Nos. 04-2310 & 04-2365                                        5

  Isbell did not sign the Release. At first, she was inclined to
remain with the company as an independent contractor but
did not want to have to do so at the cost of signing the
Release. Because this was not possible she chose to leave the
Company. Allstate paid her the severance she was entitled
to under Option Four. Before she left, however, in May 2000,
she filed a claim of age discrimination and retaliation with
the EEOC.
  Isbell and Schneider ultimately filed the present suit. Both
made claims of retaliation in violation of the ADEA, Title
VII, the ADA, and ERISA, discrimination in violation of the
ADEA, and unlawful termination to prevent the use of
pension benefits—an ERISA claim. Isbell also raised a claim
of retaliation in violation of state law. Allstate filed a
counterclaim against Schneider (but not Isbell) for breach of
contract (the Release) and unjust enrichment. The district
court consolidated the cases and the parties conducted
discovery.
  On February 19, 2002, Isbell moved for partial summary
judgment on her claims of retaliation. Allstate filed a cross-
motion for summary judgment in its favor. The district court
ultimately denied Isbell’s motion and granted Allstate’s.
  At the conclusion of discovery Allstate moved for sum-
mary judgment on the remainder of Isbell’s claims, all of
Schneider’s claims, and its counterclaim against Schneider.
On November 25, 2003, the district court granted Allstate’s
motion as to Schneider’s breach of the Release. The district
court ultimately ruled in favor of Schneider with respect to
damages, finding that, although Schneider had breached his
contract with Allstate, Allstate had shown no damages from
the breach.
   After the district court entered a final judgment, Isbell
filed this appeal from the district court’s entry of judgment
6                                      Nos. 04-2310 & 04-2365

on her retaliation, discrimination, and ERISA claims while
Allstate has appealed the district court’s denial of damages
in its counterclaim against Schneider. Schneider has not
appealed the decision denying his claims and he is a party
to this appeal only as a cross-appellee in Allstate’s appeal.


                                II.
  As we have just noted, Isbell and Allstate each appeal
adverse rulings by the district court. We discuss each in
turn.


A. Isbell’s Appeal
  Isbell appeals the district court’s decisions to grant
summary judgment in favor of Allstate on her claims of
retaliation, discrimination, and violation of § 510 of ERISA.
We review a district court’s grant of summary judgment
de novo. Jordan v. City of Gary, Ind., 396 F.3d 825, 831 (7th
Cir. 2005). “[S]ummary judgment is only appropriate where
‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.’ ” Id. (quoting Fed. R. Civ. P. 56(c)).


    1.   Isbell’s retaliation claim.
  As with other employment-related claims (discrimination
for instance), a plaintiff may proceed with a claim of retali-
ation pursuant to either the direct or indirect method. Luckie
v. Ameritech Corp., 389 F.3d 708, 714 (7th Cir. 2004). In this
case, however, because Isbell has offered no evidence of
retaliation under the direct method, we proceed to the
Nos. 04-2310 & 04-2365                                        7

indirect method. This method requires Isbell to show: “(1)
she engaged in statutorily protected activity; (2) she was
performing her job according to [Allstate’s] legitimate
expectations; (3) despite her satisfactory performance, she
suffered an adverse employment action; and (4) she was
treated less favorably than similarly situated employees
who did not engage in statutorily protected activity.” Id.
  Given the standard we have just recited, Isbell appears to
throw in the towel when she admits in her opening brief to
this court that “her employment was [not] terminated in
retaliation for protected activity.” Instead, 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.” Isbell thus argues that Allstate could not
require her to sign the Release as a condition to becoming an
independent contractor with the Company.
  Isbell was not a victim of retaliation. Her reason for
termination was the same for all employees at Allstate who
were similarly situated. She had four options. Three of those
options had various incentives and benefits in exchange for
the release. In order to be valid, a release, like all agree-
ments, must be supported by consideration. See, e.g., 29
U.S.C. § 626(f)(1)(D) (stating that for a release to be valid
under the Older Workers Benefits Protection Act, a release
must be supported by consideration). An 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.
  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. Isbell’s fellow plaintiff Schneider signed the
8                                     Nos. 04-2310 & 04-2365

Release, yet he too lost his job as an employee agent. The
district court did not err in granting summary judgment in
Allstate’s favor on Isbell’s claim of retaliation.


    2.   Isbell’s ADEA discrimination claim.
  Pursuant to the ADEA, it is unlawful for an employer “to
fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C. §
623(a)(1). Like other similar claims, a plaintiff raising a
claim of age discrimination may proceed by either the direct
or indirect method. Rhodes v. Ill. Dept. of Transp., 359 F.3d
498, 504 (7th Cir. 2004); Balderston v. Fairbanks Morse Engine
Div. of Coltec Indus., 328 F.3d 309, 321 (7th Cir. 2003). Isbell
has chosen the direct method.
  A plaintiff utilizing the direct method may rely on either
direct or circumstantial evidence. Rhodes, 359 F.3d at 504. As
this court has noted, direct evidence of age discrimination
(or any other form of discrimination for that matter) essen-
tially requires an admission by an employer or some sort of
“smoking gun” that points to discrimination. Jordan, 396
F.3d at 832; Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d
391, 397 (7th Cir. 1997). There was no such admission or
smoking gun here.
  Circumstantial evidence under the direct method is suffi-
cient to show discriminatory intent only where the plaintiff
can “construct[ ] a ‘convincing mosaic’ of circumstantial
evidence that ‘allows a jury to infer intentional discrimi-
nation by the decision-maker.’ ” Rhodes, 359 F.3d at 504
(quoting Troupe v. May Dept. Stores Co., 20 F.3d 734, 737 (7th
Cir. 1994)). The evidence must, however, “point directly to
a discriminatory reason for the employer’s action.” Id.
Nos. 04-2310 & 04-2365                                          9

(quoting Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939
(7th Cir. 2003)).
  Isbell presents evidence from a series of studies conducted
by Allstate, or on its behalf by consultants, that Isbell claims
show that the Company believed younger agents performed
better than older agents. The first study cited by Isbell was
conducted by the Company in mid-1996, three and one-half
years prior to the revamping of Allstate’s workforce. The
                                                               2
results of that study were compiled in a Powerpoint
presentation and shared with the Allstate’s then-Chair-
man/CEO and its COO. The primary focus of the study and
the ultimate conclusion appears to be that independent
contractors outperformed employee agents; a conclusion
that appears to foreshadow Allstate’s ultimate decision to
eliminate the employee-agent position and move to an all-
independent contractor model of business.
  The presentation did note, however, some information
concerning the age of agents which Isbell considers evidence
of an intent to discriminate. The study showed the distribu-
tion of agents by tenure and average age and also noted that
over 15% of the Company’s agent force could retire in the
next fifteen years. The study also suggested that “[t]here is
a potential generational mismatch between our agents and
the new customers we seek.” It noted that “[p]roductivity
declines slightly by the age of the agent.” The study also
found, however, that “[p]roduction by agent type remains
constant, no matter what the agent age cohort.” In other


2
   Powerpoint is a computer program that allows for the con-
struction of “slide shows,” often using graphics and other devices
(tables, charts, etc.) to present a report in summary fashion. The
slide shows can be printed out and distributed on paper, dis-
played on a computer, or projected onto a screen (as in a board
meeting).
10                                     Nos. 04-2310 & 04-2365

words, independent contractors had approximately the
same production level regardless of the age group-
ing—thirty to thirty-nine-year-old independent contractors
had the same production level as forty-five to forty-nine
year-old independent contractors and likewise for employee
        3
agents.
  The second study relied on by Isbell was a study, known
as the Sale Organization of the Future (the “SOOF”),
prepared for the Company in 1997 by an outside consultant.
The SOOF study was much more concerned with the age of
the Company’s employee agents than the 1996 study. The
SOOF included a presentation of agent demographics that
highlighted the age distribution of the Company’s agents
and explored the options for eliminating the employee-
agent role in the agent workforce.
  Isbell also cites a 1999 study conducted by Allstate that
studied the relationship between age and productivity.
Although Isbell reports that the study showed that agents in
younger age groups produced “slightly more new busi-

3
  Without too much analysis (we are not privy to the underlying
data that went into these studies), this would suggest a fairly
innocuous reason for the statement that production for agents
declined slightly by the age of an agent. The independent con-
tractors outperformed their employee-agent counterparts and the
independent contractor program was concentrated amongst the
relatively younger employees (the program was relatively new in
1996). Thus, the decline in production numbers for all agents as
they aged could be attributable to the concentration of the better
performing agent types in the younger age groups. Thus, while
a forty-nine year-old agent, on average, could be expected to
perform as well as a thirty-year-old agent of the same type, there
were more agents from the poorer performing agent types in the
higher age brackets than there were better performing agent
types.
Nos. 04-2310 & 04-2365                                         11

ness,” Isbell failed to note the heading to that page of the
study—“[o]verall, there is a weak relationship between age
and production.” (Emphasis added.) Isbell also failed to
note that the study concluded that “focusing only on ‘high
potential’ hires, there is little relationship between age and
production.” Finally, Isbell failed to cite a conclusion of the
study “age should not play a role in recruiting or hiring
decisions.”
  Taken together, this evidence does not provide a “con-
vincing mosaic” from which a jury could infer discrimina-
tory intent on the part of Allstate. As the district court
pointed out, there was no evidence that the studies were
used by the decisionmakers involved in the decision to
eliminate the employee-agent program. Fuka v. Thomson
Consumer Elecs., 82 F.3d 1397, 1403-04 (7th Cir. 1996).
  Isbell’s claim that Allstate discriminated against older
workers when it eliminated the employee-agent position has
no merit. She seeks to magnify the age issue by focusing
only on one job category without recognizing the entirety of
Allstate’s restructuring effort—eliminating an employment
position and offering those affected another position with
the Company. As a consequence, every employee in that
                                         4
position lost his job, regardless of age. That was not the sum
of Allstate’s restructuring program, however. Each and


4
   This is also the reason Isbell cannot succeed in showing dis-
crimination via the indirect McDonnell Douglas method. That
method requires Isbell to show (among other things) that sim-
ilarly situated persons under forty were treated better than she
was. That is not possible here. Every person similarly situated to
Isbell, over forty or under forty, was treated precisely the same
way—their position with the Company was terminated and they
were offered a choice of options including a new position with
Allstate.
12                                     Nos. 04-2310 & 04-2365

every one of the employee agents, regardless of age, was
offered a new opportunity with the Company. Allstate was
entitled to summary judgment on Isbell’s claim of age
discrimination.


  3.   Isbell’s ERISA claim.
  Isbell claims that Allstate violated § 510 of ERISA when it
eliminated her position because it did so, according to Isbell,
for the purpose of preventing her from taking advantage of
vested health benefits. Section 510 makes it “unlawful for
any person to discharge, fine, suspend, expel, discipline, or
discriminate against a participant or beneficiary for exercis-
ing any right to which he is entitled under the provisions of
an employee benefit plan . . . .” 29 U.S.C. § 1140.
  The loss of benefits to an employee as a result of an em-
ployer’s action is not, by itself, sufficient to prove a violation
of § 510. The employer must have the specific intent to
deprive an employee of his plan rights. Lindemann v. Mobil
Oil Corp., 141 F.3d 290, 295 (7th Cir. 1998). No violation will
arise where the deprivation was simply the consequence of
a decision that had the incidental effect of affecting an
employee’s benefits. Id. (quoting Meredith v. Navistar Int’l
Transp. Corp., 935 F.2d 124, 127 (7th Cir. 1991)). “[T]he
plaintiff must ultimately show that a desire to frustrate at-
tainment or enjoyment of benefit rights contributed toward
the employer’s decision and can avoid summary judgment
only if the materials properly before the district court,
construed sympathetically, allow for such a conclusion.”
Teumer v. General Motors Corp., 34 F.3d 542, 550 (7th Cir.
1994).
  As above, a plaintiff can show a violation of § 510 pur-
suant to the direct or indirect method. Isbell has no direct or
circumstantial evidence that Allstate eliminated the em-
Nos. 04-2310 & 04-2365                                      13

ployee-agent position for the purpose of depriving her (and
the other employee agents) of her pension and health care
benefits. She must proceed, therefore, under the indirect
method. Such method utilizes the McDonnell Douglas bur-
den-shifting analysis.
   A plaintiff makes out a prima facie under § 510 where she
can show “that [she] (1) belongs to the protected class; (2)
was qualified for [her] job position; and (3) was discharged
or denied employment under circumstances that provide
some basis for believing that the prohibited intent to
retaliate” or to prevent the use of benefits was present.
Grottkau v. Sky Climber, Inc., 79 F.3d 70, 73 (7th Cir. 1996);
Lindemann, 141 F.3d at 295. In a § 510 case, however, this
court need not “determine whether a plaintiff has estab-
lished a prima facie case where a defendant has advanced
a legitimate, nondiscriminatory reason for its action.” Id. at
296.
   In this case Allstate has offered legitimate, nondiscrimina-
tory reasons for eliminating the employee-agent position
and moving to an all-independent contractor agent force.
Chief among these was the higher productivity of independ-
ent contractors (and, notably, the even higher productivity
for former employee agents who had voluntarily converted
to independent contractors). The independent contractors
were paid higher commissions than employee agents and no
doubt, like many companies, Allstate believed that paying
its sales force primarily through commissions spurs the
salesmen to sell more. This is a legitimate business reason
for Allstate’s decision. Allstate was entitled to summary
judgment.


B. Allstate’s Appeal
  Allstate appeals the district court’s conclusion that while
Schneider had breached his agreement with the Company
14                                   Nos. 04-2310 & 04-2365

(the Release), Allstate was not entitled to damages arising
from that breach. Schneider wanted to have his cake and eat
it too. In spite of his signing the Release he sued under the
ADEA. In the meantime, he took full advantage of Option
Two by selling his book and retaining the bonus (and the
benefit of the forgiven loan). Allstate claims damages in the
amount of $126,000: $120,000 for the economic interest in his
book of business Schneider was able to sell; $5,000 for the
bonus he was given for signing the Release; and $1,000 for
the forgiveness of an advance Allstate had given him.
Allstate does not seek attorney’s fees.
  The Release signed by Schneider provided that the em-
ployee “hereby release[s], waive[s], and forever discharge[s]
Allstate . . . from any and all liability, actions, charges,
causes of action, demands, damages, entitlements or claims
for relief or remuneration of any kind whatsoever, . . .
including . . . any claim for age or other types of
discrmination prohibited under the [ADEA, Title VII, the
ADA, and ERISA].” Allstate and the district court consider
the Release a covenant not to sue and consequently, Allstate
argues Schneider breached the covenant when he sued
Allstate.
  We disagree. The Release does not amount to a covenant
not to sue, but rather is a release from liability for any
potential past claims. While the Release gives Allstate a
defense that prevents Schneider from winning, the Release
does not contain plain language that amounts to an agree-
ment not to sue. As the Eighth Circuit recently noted, “[a]
release of claims and a covenant not to sue serve different
purposes.” Thomforde v. Int’l Bus. Machs. Corp., 406 F.3d 500,
Nos. 04-2310 & 04-2365                                           15
                     5
503 (8th Cir. 2005). The latter does not result in breach upon
the filing of a suit. Instead, it provides Allstate with an
effective affirmative defense should a claim be raised.
Because the Release was a release of claims and not a
covenant not to sue, Schneider did not breach the Release
with his suit. Allstate received the benefit of its bargain— an
                      6
affirmative defense. Summary judgment should have been
granted in favor of Schneider on Allstate’s claim of breach.


                               III.
  Allstate eliminated the positions of 6,400 employees,
regardless of their age. It then turned around and offered


5
  In Thomforde, an engineer was fired as part of a reduction in
force and signed a document titled “General Release and
Covenant Not to Sue.” Thomforde, 406 F.3d at 501. Similar to
the Release in this case, that agreement contained a provision
releasing IBM from claims arising under the ADEA. Id. The IBM
agreement, however, went on to include another paragraph
stating that “[y]ou agree that you will never institute a claim of
any kind against IBM . . . including, but not limited to, claims
related to your employment with IBM or the termination of that
employment . . . .” Id. at 501-02. The court and the parties
considered the first provision a release and the second a covenant
not to sue.
6
  This does not mean, of course, that a party that is the benefi-
ciary of release of liability is without all remedies—a party that
brings a suit invoking claims covered by a release may be doing
so in bad faith (and subject to paying the attorneys’ fees of the
party covered by the release). In this case, however, Allstate ad-
mits that it did not distinguish between the cost of litigating
Isbell’s claim (which was not subject to a release of liability) and
Schneider’s claim.
16                                    Nos. 04-2310 & 04-2365

those same employees, regardless of age, new opportunities
with the Company. This was not discrimination and Allstate
did not retaliate against Isbell when it refused to hire her for
one of these new opportunities after she refused to sign a
release of liability. The district court did not err in granting
Allstate summary judgment on Isbell’s claims of retaliation
and discrimination as well as Isbell’s ERISA claim.
  The district court erred, however, insofar as it granted
summary judgment to Allstate on its counterclaim of breach
of contract by Schneider. The decision of the district court to
that effect is, therefore, REVERSED and it is ordered to enter
judgment on that claim in favor of Schneider.
Nos. 04-2310 & 04-2365                                    17

A true Copy:
       Teste:

                         _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




                  USCA-02-C-0072—8-15-05
18   Nos. 04-2310 & 04-2365
