Blackie v. State of Maine

February 14, 1996 UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-1777
DANA BLACKIE, ET AL.,
Plaintiffs, Appellants,
v.
STATE OF MAINE, ET AL.,
Defendants, Appellees.
ERRATA SHEET
ERRATA SHEET
The opinion of this court issued on January 30, 1996, is
corrected as follows:
On page 3, line 5, change "them" to "the holders of those
positions."
On page 18, line 15, change "some level" to "some degree"
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-1777
DANA BLACKIE, ET AL.,
Plaintiffs, Appellants,
v.
STATE OF MAINE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
John R. Lemieux for appellants.
Peter J. Brann, Assistant Attorney General, with whom Andrew
Ketterer, Attorney General, and Thomas D. Warren, Assistant
Attorney General, were on brief, for appellees.
SELYA, Circuit Judge. In this appeal, several
SELYA, Circuit Judge.
probation officers employed by the State of Maine seek to evade
the consequences of what they belatedly deem to be a Faustian
bargain. The district court thought the probation officers'
claim took too much license, and rejected it. See Blackie v.
Maine, 888 F. Supp. 203 (D. Me. 1995). The plaintiffs appeal.1
We affirm.
I. BACKGROUND
I. BACKGROUND
The subsidiary facts are not in serious dispute.
Beginning in 1978, collective bargaining agreements between the
State of Maine and certain state workers stipulated that those
employees whose positions demanded that they work non-standard
hours, i.e., irregular schedules exceeding forty hours per week,
instead of, say, regular 9:00-to-5:00 shifts, would receive a
sixteen percent premium over and above their base pay (but no
overtime compensation). Probation officers' jobs satisfied this
definition and therefore carried an entitlement to the pay
premium.
In 1985, the United States Supreme Court handed down a
resipiscent decision in which it confessed error, reversed prior
precedent, and held that the wage and hour provisions of the Fair
Labor Standards Act (FLSA), 29 U.S.C. 201-219, applied to state
1The plaintiffs, appellants here, occupy positions that are
variously classified as "Probation Parole Officer/Juvenile
Caseworker" and "Probation Parole Officer II." Because the
distinction between these positions makes no difference for
present purposes, we refer to the plaintiffs simply as "probation
officers."
3
employers. See Garcia v. San Antonio Metro. Transit Auth., 469
U.S. 528, 555-57 (1985). Maine promptly evaluated its work force
to determine which state jobs came under the FLSA's overtime
compensation provisions and which did not. After concluding that
many positions within the law enforcement services bargaining
unit of the Maine State Employees Association (the Union) were
FLSA-covered, the State negotiated side agreements with the
holders of those positions. In general, these pacts eased the
transition by confirming the affected workers' eligibility for
overtime compensation, increasing their base salaries by an
average of four percent, and eliminating the sixteen percent non-
standard pay premium. The State concluded, however, that the
probation officers fell within an FLSA exemption for professional
employees, see 29 U.S.C. 213(a)(1), and therefore permitted
them to retain their wonted status. Consequently, probation
officers continued to receive the pay premium (but no overtime
compensation).
In negotiations leading to the adoption of a collective
bargaining agreement (CBA) to take effect in 1986, the State and
the Union locked horns over the interplay between FLSA-mandated
overtime compensation and the non-standard pay premium. The
probation officers set out to secure guaranteed payment of the
premium for the life of the contract, regardless of their status
under the FLSA. The State balked. Eventually, the parties
resolved the impasse by agreeing to the non-standard workweek
article reprinted in the appendix.
4
Several years passed. Then, on December 18, 1992, a
cadre of probation officers sued the State seeking the shelter of
the FLSA. One year and three days later, the district court
vindicated the probation officers' right to receive time-and-one-
half overtime compensation under the federal law. See Mills v.
Maine, 839 F. Supp. 3, 4-5 (D. Me. 1993). The State eschewed an
appeal. Instead, on January 3, 1994, Nancy Kenniston, the
director of Maine's Bureau of Human Resources (BHR), notified all
probation officers (including those who had not participated in
the Mills litigation) that they would no longer receive the pay
premium. The State reasoned that, under the terms of the non-
standard workweek article, job classifications had to meet three
enumerated criteria to qualify for non-standard status; the lack
of FLSA coverage constituted one such criterion; Mills
established juridically that the probation officers did not
fulfill this criterion, i.e., they did not occupy "[p]ositions in
a classification . . . exempt for overtime compensation from the
FLSA"; and, having lost their non-standard status, the probation
officers had also lost their entitlement to the pay premium.
The Union countered this reclassification by proposing
a side agreement similar to those entered into between the State
and certain other bargaining units nearly a decade earlier. On
February 2, 1994, Kenneth Walo, director of Maine's Bureau of
Employee Relations, rejected this overture because the CBA
expressly addressed the linkage between FLSA coverage status and
the non-standard pay premium a circumstance that did not obtain
5
when the State negotiated the earlier pacts and because the
CBA's "zipper clause" made it pellucid that the parties had no
obligation to renegotiate matters so addressed.2 Stymied by
this turn of events, several probation officers sued a phalanx of
defendants (collectively, the State) under the FLSA's anti-
retaliation provision.3 They charged, inter alia, that the
State's decision to eliminate the pay premium while at the same
time abjuring a side agreement constituted acts of reprisal
provoked by the probation officers' successful crusade for FLSA
overtime pay. The State denied the allegations.
After the parties cross-moved for summary judgment, the
district court granted the State's motion. As to the lost pay
premium, the court concluded that the bargained language of the
2The zipper clause states:
Each party agrees that it shall not
attempt to compel negotiations during the
term of this agreement on matters that could
have been raised during the negotiations that
preceded this agreement, matters that were
raised during the negotiations that preceded
this agreement, or matters that are
specifically addressed in this agreement.
Maine's Supreme Judicial Court has given such clauses full force
and effect. See, e.g., Bureau of Employee Relations v. AFSCME,
614 A.2d 74, 77 (Me. 1992).
3The statute provides in part that no employer may
discharge or in any other manner discriminate
against any employee because such employee
has filed any complaint or instituted or
caused to be instituted any proceeding under
or related to [the FLSA].
29 U.S.C. 215(a)(3).
6
CBA, as opposed to any retaliatory animus, compelled the result.
See Blackie, 888 F. Supp. at 207. As to the State's spurning of
a side agreement, the court held that this rebuff did not
constitute an adverse employment action under the FLSA. See id.
at 208. This appeal ensued.
II. ANALYSIS
II. ANALYSIS
The district court's closely reasoned opinion mortally
wounds the arguments that the appellants parade before us. Thus,
we affirm the judgment largely for the reasons already
articulated, adding only the finishing touches.
First: The appellants labor to convince us that the
First:
parties' disagreement over the meaning of the non-standard
workweek article forestalls the entry of summary judgment. Their
labors are both unproductive and unpersuasive.
Of course, summary judgment is appropriate only if the
record reveals no genuine issue of material fact and the movant
demonstrates an entitlement to judgment as a matter of law. See
Fed. R. Civ. P. 56(c); see also McCarthy v. Northwest Airlines,
Inc., 56 F.3d 313, 315 (1st Cir. 1995) (collecting cases);
National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735
(1st Cir.), cert. denied, 115 S. Ct. 2247 (1995). Under this
standard, "a party seeking summary judgment [must] make a
preliminary showing that no genuine issue of material fact
exists. Once the movant has made this showing, the nonmovant
must contradict the showing by pointing to specific facts
demonstrating that there is, indeed, a trialworthy issue."
7
National Amusements, 43 F.3d at 735. Nonetheless, genuineness
and materiality are not infinitely elastic euphemisms that may be
stretched to fit whatever pererrations catch a litigant's fancy.
In the lexicon of Rule 56, "genuine" connotes that the
evidence on the point is such that a reasonable jury, drawing
favorable inferences, could resolve the fact in the manner urged
by the nonmoving party, and "material" connotes that a contested
fact has the potential to alter the outcome of the suit under the
governing law if the controversy over it is resolved
satisfactorily to the nonmovant. See United States v. One Parcel
of Real Property (Great Harbor Neck, New Shoreham, R.I.), 960
F.2d 200, 204 (1st Cir. 1992). The happenstance that both
parties move simultaneously for brevis disposition does not, in
and of itself, relax the taut line of inquiry that Rule 56
imposes. "Barring special circumstances, the nisi prius court
must consider each motion separately, drawing inferences against
each movant in turn." EEOC v. Steamship Clerks Union, Local
1066, 48 F.3d 594, 603 n.8 (1st Cir.), cert. denied, 116 S. Ct.
65 (1995). Matters of law, however, are for the court to
resolve. See Stauble v. Warrob, Inc., 977 F.2d 690, 693 (1st
Cir. 1992).
In this instance, the appellants confuse matters of
fact with matters of law. It is for the court, not the jury, to
ascertain whether the terms of an integrated agreement are
unambiguous, and if so, how to construe those terms. See Allen
v. Adage, Inc., 967 F.2d 695, 698 (1st Cir. 1992). "In this
8
sense, questions about the meaning of contractual provisions are
questions of law, and we review the district court's answers to
them de novo." United States Liab. Ins. Co. v. Selman, 70 F.3d
684, 687 (1st Cir. 1995).
The appellants try to bypass these familiar rules by
portraying the non-standard workweek article as freighted with
ambiguity. But a contract is not ambiguous merely because a
party to it, often with a rearward glance colored by self-
interest, disputes an interpretation that is logically compelled.
See FDIC v. Singh, 977 F.2d 18, 22 (1st Cir. 1992). Nor must a
contract "negate every possible construction of its terms in
order to be unambiguous." Triple-A Baseball Club Assocs. v.
Northeastern Baseball, Inc., 832 F.2d 214, 220 (1st Cir. 1987)
(quoting Waxler v. Waxler, 458 A.2d 1219, 1224 (Me. 1983)), cert.
denied, 485 U.S. 935 (1988). Rather, a contract is ambiguous
only when its terms lend themselves to more than one reasonable
interpretation. See Fashion House, Inc. v. K Mart Corp., 892
F.2d 1076, 1083 (1st Cir. 1989); RCI Northeast Servs. Div. v.
Boston Edison Co., 822 F.2d 199, 202 (1st Cir. 1987); American
Policyholders' Ins. Co. v. Kyes, 483 A.2d 337, 340 (Me. 1984).
The specific provision at issue here the non-standard
workweek article most assuredly is not a model of syntax;
indeed, it appears to create a tautology in defining which
classes of employees qualify for the non-standard pay premium.
Yet the circle formed by the contract language is virtuous rather
than vicious, and does not render the text ambiguous. Read as a
9
whole, the article can sustain only one reasonable
interpretation. Section 1 provides that the employee
classifications listed in section 3 (e.g., probation officers)
must meet each of three criteria (exemption from FLSA coverage,
elongated workweek, irregular work schedule) to qualify as non-
standard positions. Section 2 merely makes explicit what is
implicit in a combined reading of the other two sections: the
State's power to delete an employment category from non-standard
status once it appropriately determines that the employees within
that category are not exempt from the FLSA. The short of it is
that, under the terms of the article, FLSA coverage and non-
standard status are mutually exclusive. Accordingly, the FLSA
overtime matrix and the non-standard pay premium are mutually
exclusive methods of remuneration.
The appellants challenge this seemingly straightforward
construction by training their sights single-mindedly on section
3. Doing enormous violence to context, they suggest that because
certain job classifications enumerated in section 3 are
designated therein as "meeting the above criteria," those jobs
are frozen into place (and, thus, entitled to receive the pay
premium) for the duration of the CBA. This infrigidated reading
melts under the most mild scrutiny.
It is hornbook law that an interpretation which gives
effect to all the terms of a contract is preferable to one that
harps on isolated provisions, heedless of context. See Smart v.
Gillette Co. Long-Term Disability Plan, 70 F.3d 173, 179 (1st
10
Cir. 1995); Fashion House, 892 F.2d at 1084; Salmon Lake Seed Co.
v. Frontier Trust Co., 153 A. 671, 672 (Me. 1931). Since the
whole of an integrated agreement ordinarily should be considered
in order to determine the meaning of any individual part, the
appellants' Cyclopic reading of section 3 a reading that not
only ignores but also flatly contradicts sections 1 and 2
cannot be countenanced. If the parties intended to guarantee the
probation officers a pay premium for the life of the CBA,
sections 1 and 2 would be totally superfluous (and, indeed, at
cross-purposes).
To sum up, the district court appropriately treated the
non-standard workweek article as unambiguous, gave its terms
their plain and ordinary meaning, and did not err in interpreting
it favorably to the State at the summary judgment stage.
Second: The appellants trumpet that summary judgment
Second:
should have entered in their favor because the State admittedly
eliminated the probation officers' pay premium in response to the
Mills lawsuit. Because this ipse dixit relies upon a contorted
view of the law, we reject it.
A
A
The FLSA's anti-retaliation provision prohibits an
employer from penalizing an employee who seeks to enforce rights
guaranteed by the federal law. See 29 U.S.C. 215(a)(3).
Although the framework for proving that an employer took an eye
for an eye can vary depending upon the evidence available to show
retaliatory animus, cf. Fields v. Clark Univ., 966 F.2d 49, 51-52
11
(1st Cir. 1992) (elucidating this point in the Title VII
environment), cert. denied, 113 S. Ct. 976 (1993), the elements
of a retaliation claim remain much the same. They comprise, at a
minimum, a showing that (1) the plaintiff engaged in statutorily
protected activity, and (2) his employer thereafter subjected him
to an adverse employment action (3) as a reprisal for having
engaged in the protected activity. See Mesnick v. General Elec.
Co., 950 F.2d 816, 827 (1st Cir. 1991), cert. denied, 504 U.S.
985 (1992); York v. City of Wichita Falls, 944 F.2d 236, 239-41
(5th Cir. 1991) (York I); Connell v. Bank of Boston, 924 F.2d
1169, 1179 (1st Cir.), cert. denied, 501 U.S. 1218 (1991);
Petitti v. New Eng. Tel. & Tel. Co., 909 F.2d 28, 33 (1st Cir.
1990). The third element is of pivotal importance in this case.
Under it, a plaintiff must proffer evidence from which a
reasonable factfinder could infer that the employer retaliated
against him for engaging in the protected activity. See Mesnick,
950 F.2d at 828. In other words, the record must enable the
trier plausibly to find that "a causal connection existed between
the protected conduct and the adverse action." Id. at 827(emphasis supplied) (citing Connell, 924 F.2d at 1179).
The appellants easily demonstrated the first two
elements of their prima facie case; it is uncontested that they
engaged in a protected activity (filing suit under the FLSA) and
that the State subsequently took an adverse employment action
(eliminating the non-standard pay premium). On the third element
the appellants made a much more tenuous showing: they limned a
12
close temporal link the change in classification followed hot
on the heels of the Mills decision and produced evidence of
statements by certain officials to the effect that the district
court's order in Mills led to the State's decision to reclassify
the probation officers and revoke their pay premium.4 As we
elucidate below, this evidence, taken most hospitably to the
appellants, fails to create a genuine question of material fact
in respect to the third element of their cause of action.
B
B
The fundamental flaw in the appellants' argument is
that it depends on applying a black-letter legal rule in a purely
mechanical fashion, divorced from considerations of policy and
logic. They begin, auspiciously enough, with the proposition
that the FLSA prohibits an employer from taking an adverse
employment action because an employee participates in a protected
activity. They then observe that the State scrapped the pay
premium because of the Mills lawsuit. On this basis, they assert
that the State violated the FLSA. This is a non sequitur: one
plus one does not equal three.
The appellants' argument assumes that the FLSA's ban on
retaliating against an employee who engages in a protected
activity is the functional equivalent of a straightjacket which
4The State contends that these statements are immaterial
because none of them was attributable to the actual decisionmaker
(Kenniston). See, e.g., Medina-Munoz v. R.J. Reynolds Tobacco
Co., 896 F.2d 5, 10 (1st Cir. 1990). We need not pursue this
point because even if the statements are probative of the matter
asserted an issue on which we express no opinion they are
insufficient to turn the tide.
13
restrains an employer from responding on the basis of its
business judgment to the outcome brought about by the protected
activity. We disagree with this assumption. The FLSA like
other anti-retaliation laws does not immobilize employers in
this manner. An employer may reorganize its affairs and take
other necessary employment actions in order to manage the impact
of compliance with the outcomes produced by a protected activity
so long as it does so for legitimate reasons and not in reprisal
for the fact of an employee's participation. See, e.g., York v.
City of Wichita Falls, 48 F.3d 919, 920-21 (5th Cir. 1995) (York
II) (finding no retaliation under the FLSA when city restructured
compensation arrangements "to comply with Garcia and the FLSA
within existing budgetary constraints"); Adams v. City of
McMinnville, 890 F.2d 836, 839 (6th Cir. 1989) (similar). A
contrary rule would mummify the status quo and prevent an
employer from complying with a court order in the manner that it
deems most compatible with the lawful operation of its business.
Nothing in the FLSA even remotely suggests this grotesque result.
Recognizing this abecedarian principle leads to the
following conclusion. The anti-retaliation provision mandates
that an employer must put to one side an employee's lawful
efforts to secure rights assured by the FLSA. At the same time,
the statute does not foreclose the employer from exercising its
business judgment simply because doing so may affect an employee
who successfully asserted FLSA-protected rights.
The other side of the coin, of course, is that by
14
engaging in a protected activity an employee does not acquire
immunity from the same risks that confront virtually every
employee every day in every work place. The FLSA is neither a
shield against legitimate employer actions nor a statutory
guaranty of undiluted compensation, come what may. This case
aptly illustrates the point: applying the anti-retaliation
provision as the appellants ask would bar the employer from
enforcing a valid preagreed contractual provision specifically
negotiated to guard against the very eventuality a change in
the parties' status that the appellants subsequently labored to
achieve. That is not the law.
C
C
The appellants' thesis suffers from another infirmity
as well. The thesis necessarily depends on the existence of some
evidence that the statutorily protected activity (i.e., the
appellants' instigation of, and participation in the Mills
litigation) furnished the motive driving the State's execution of
the adverse employment action (i.e., the shift in
classification). We agree with the lower court that the record
contains no such evidence.
The CBA provides in substance that probation officers
will receive the non-standard pay premium as long as they remain,
among other things, exempt from coverage under the FLSA's
overtime pay provisions. Once Mills established that the
probation officers were not so exempt, the CBA dictated that the
15
non-standard pay premium be eliminated.5 The State's decision
to abolish the pay premium applied equally to all probation
officers, regardless of whether they had joined the Mills
plaintiffs. What is more, that decision was taken in response
to the Mills ruling only in the sense that the State believed
itself obligated to follow both the letter and the spirit of the
federal court's decree. There is simply no basis for a reasoned
inference that the State's reliance on the CBA was a pretext for
retaliation.
In a nutshell, then, the State plainly changed the
appellants' classification for a nondiscriminatory reason,
namely, to implement the terms of a contract that required the
State to eliminate the pay premiums to match the recipients'
status vis-a-vis the FLSA. That the State's action took place
because of a judicial declaration of the appellants' status,
brought about by the appellants' suit, neither transforms the
character of the action nor renders it per se unlawful under the
FLSA. For aught that appears, the State would have taken the
same action regardless of the presence or absence of retaliatory
animus.
5The appellants argue that the letter of the CBA did not
require the BHR to reclassify their positions merely because the
federal district court had so ruled. This amounts to little more
than whistling past the graveyard. Once the federal court had
spoken, state officials were duty bound to enforce the State's
rights under the terms of the CBA in order to protect the public
fisc especially where, as here, the CBA expressly addressed the
situation. And, moreover, the appellants had no possible reason
to anticipate that the State would refrain from exercising its
explicitly reserved rights under the CBA.
16
Third: Next, the appellants bombard the CBA itself.
Third:
They have lately come to the view that a contract which permits
the State to forgo the non-standard pay premium whenever a court
determines that a class of employees is not exempt from FLSA
coverage is an abomination, and thus unenforceable.
This barrage is fired from two different directions.
Both volleys land well wide of the mark.
A
A
The appellants asseverate that if the terms of the CBA
ensure that a successful FLSA suit inevitably will result in
ending the pay premium, then the CBA contains a veiled threat
against pursuing FLSA rights and is per se retaliatory. The
asseveration lacks force.
The CBA leaves no room to doubt that the State bestowed
the non-standard pay premium on the probation officers in lieu of
overtime compensation.6 It simply is not retaliatory for an
employer and an employee to agree to alternative methods for
compensating overtime work based on the latter's coverage status
6Based on actions taken by the Mills court, the appellants
contend that the sixteen percent pay premium comprised part of
their base wage rate. This contention is disingenuous. While
the Mills court included the pay premium in the probation
officers' "regular rate of pay," see Mills v. Maine, 853 F. Supp.
551, 554 (D. Me. 1994), it did so solely as part of calculating
the probation officers' damages under the FLSA. That damage
computation has no bearing on the contractual question of whether
the parties intended the premium to be a surrogate for overtime
compensation.
17
under the FLSA.7 See, e.g., Walling v. Belo Corp., 316 U.S.
624, 630 (1941) (holding that "nothing in the [FLSA] bars an
employer from contracting with his employees to pay them the same
wages that they received previously"); Anderson v. Bristol, 6
F.3d 1168, 1173 (6th Cir. 1993) (holding that the FLSA "does not
prohibit changes in wage rates; it prohibits the payment of
overtime at less than one and one-half times the regular wage
rate"); Adams, 890 F.2d at 839 (finding no retaliation when city
altered employees' compensation structure to offset budgetary
impact of Garcia decision).
B
B
The appellants also claim that the either-or
proposition contained in the non-standard workweek article
amounts to an unenforceable waiver of their FLSA rights. See
Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728,
745-46 (1981) (holding that employees may not contract away their
FLSA rights). This is an old whine in a new bottle. As Judge
Hornby observed, see Blackie, 888 F. Supp. at 207, the appellants
enjoyed the full panoply of rights secured to them by the FLSA.
7The appellants bewail the fact that their take-home pay may
decrease under the new format. This herring is very red. If
there is a decrease, the record contains nothing to suggest that
it will be brought about by anything other than the State's
efforts to contain overtime. Though the FLSA requires an
employer to pay a covered employee time-and-one-half for overtime
work, the employee has no vested entitlement to such work. See
Adams, 890 F.2d at 840; see also Joint Explanatory Statement of
the Committee of the Conference, H.R. Conf. Rep. No. 357, 99th
Cong., 1st Sess. 8 (1985), reprinted in 1985 U.S.C.C.A.N. 651,
670. In any event, the pivotal issue here is not the degree of
the appellants' alleged harm, but whether the State retaliated
against them at all.
18
Indeed, they successfully prosecuted their action and, as a
consequence, stand to recover substantial damages.8
Fourth: Shifting gears, the appellants posit that the
Fourth:
State's refusal to negotiate a side agreement with them
comparable to the pacts entered into between the State and other
law enforcement bargaining units in the wake of Garcia
constitutes an unlawful reprisal under the FLSA. We think not.
In a retaliation case, as in virtually any other
employment discrimination case premised on disparate treatment,
it is essential for the plaintiff to show that the employer took
a materially adverse employment action against him. See, e.g.,
York I, 944 F.2d at 239-41; Spring v. Sheboygan Area Sch. Dist.,
865 F.2d 883, 885 (7th Cir. 1989). Determining whether an action
is materially adverse necessarily requires a case-by-case
inquiry. See Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994);
see also 2 Lex K. Larson, Employment Discrimination 34.04 (2d
ed. 1994). Moreover, the inquiry must be cast in objective
terms. Work places are rarely idyllic retreats, and the mere
fact that an employee is displeased by an employer's act or
omission does not elevate that act or omission to the level of a
materially adverse employment action.
Withal, some degree of generalization can be attempted.
Typically, the employer must either (1) take something of
8The appellants attempt to blunt this thrust by arguing that
the State will use the savings from its elimination of the non-
standard pay premium to fund the damage award. This is beside
the point. How the State chooses to spend any savings it
realizes from eliminating the premium is the State's business.
19
consequence from the employee, say, by discharging or demoting
her, reducing her salary, or divesting her of significant
responsibilities, see Crady v. Liberty Nat. Bank & Trust Co., 993
F.2d 132, 136 (7th Cir. 1993); Connell, 924 F.2d at 1179, or (2)
withhold from the employee an accouterment of the employment
relationship, say, by failing to follow a customary practice of
considering her for promotion after a particular period of
service, see, e.g., Hishon v. King & Spalding, 467 U.S. 69, 75-76
(1984). Thus, the first employment action of which the
appellants complain altering the probation officers' status in
a way that rendered them ineligible for the preexisting sixteen
percent pay premium constituted a materially adverse taking
(albeit not an actionable one because it was not retaliatory in
nature). But the second employment action to which the
appellants advert the State's unwillingness, in the aftermath
of Mills, to negotiate a side agreement with them does not rise
to the level of a materially adverse action. We explain briefly.
The appellants hinge their claim on the notion that
past practice created an expectation that, when the FLSA became
applicable to a particular position, the State would negotiate a
side agreement. By refusing to follow this practice, the thesis
runs, the State deprived the appellants of their expectancy. We
agree that under certain circumstances an employer's inaction can
operate to deprive an employee of a privilege of employment that
an employee had reason to anticipate he would receive; in those
situations, the deprivation constitutes an adverse employment
20
action. See, e.g., Hishon, 467 U.S. at 75-76; Petitti, 909 F.2d
at 32. But trying to fit this case within the contours of that
doctrine is like trying to fit a square peg snugly into a round
hole.
Here, the presence of the non-standard workweek article
accomplished two things: (1) it relieved the State of any
obligation to dicker in the event of a change in the probation
officers' FLSA status; and (2) it effectively dashed any
realistic expectation that the State would negotiate a side
agreement in the event of a change in FLSA status (especially
since the CBA's zipper clause, see supra note 2, specifically
relieves both parties of any duty to renegotiate contract
provisions in midstream). Accordingly, the appellants' professed
expectancy is only wishful thinking.
If this were not enough, the historical parallel that
the appellants draw is not a parallel at all. It conveniently
ignores the fact that, when the State negotiated side agreements
nearly a decade earlier, the CBA then in effect did not address
the interplay of FLSA overtime and the non-standard pay premium.
By contrast, the contemporaneous CBA expressly defines this
relationship and indicates the results that will flow from a
change in status. To put it plainly, the circumstances had
changed so dramatically that the appellants step into quicksand
once they march under the banner of past practice.
To say more would be to knight a monarch. On the facts
of this case, the State's decision to abjure a side agreement did
21
not constitute an adverse employment action. It follows
inexorably, as night follows day, that the appellants have failed
to validate this aspect of their claim.9
III. CONCLUSION
III. CONCLUSION
We need go no further. Having agreed to the
elimination of their pay premium if found to be eligible for FLSA
overtime compensation, the appellants have no right to complain
that, when they pressed, the State held them to their bargain.
Affirmed.
Affirmed.
9We have remarked, time and again, that irony is no stranger
to the law. See, e.g., United States v. LaBonte, 70 F.3d 1396,
1401 n.1 (1st Cir. 1995); Amanullah v. Nelson, 811 F.2d 1, 18
(1st Cir. 1987). This case provides yet another example. When
the Mills plaintiffs first sued, the State offered to discuss a
settlement predicated on a side agreement, but the Union's lawyer
(now counsel for the plaintiffs in this case) turned a deaf ear.
22
APPENDIX
APPENDIX
[Note: This provision is excerpted from the 1986-87 CBA. The
parties represent that all subsequent iterations of the CBA
(including the 1993-95 version, which was in force when the
current controversy developed) contain substantially identical
language.]
C. Non-Standard Workweek
1. Classifications listed in Section 3 which meet
the following criteria shall be designated as non-
standard:
(a) Positions in a classification have been
determined by the [BHR] to be exempt for overtime
compensation from the [FLSA];
(b) Employees are required by working conditions
to work a variable workweek in excess of forty
(40) hours; and
(c) Employees' workweek are [sic] irregular and
work hours cannot be scheduled or determined
except by the employee.
2. Employees in a classification which is
designated as non-standard shall be compensated at
a rate of sixteen percent (16%) above the basic
rates in their salary grades, except that any
position that is found by the [BHR] not to be
exempt from the Fair Labor Standards Act for
overtime compensation purposes shall not be
designated non-standard.
3. The following classes are designated as
meeting the above criteria:
Forest Ranger IV
Game Warden Pilot
Marine Patrol Pilot
Probation Parole Officer/Juvenile Caseworker
Probation Parole Officer II
Special Agent Investigator
Special Investigator
State of Maine-Maine State Employees Association Agreement, Law
Enforcement Services, Art. 10.C. at 13-14 (1986-1987), reprinted
in Blackie, 888 F. Supp. at 205.
23