
USCA1 Opinion

	




          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
