

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. &amp;  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 &amp; 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 &amp; 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
