Blackie v. State of Me.
| Decision Date | 23 June 1995 |
| Docket Number | Civ. No. 94-98-P-H. |
| Citation | 888 F. Supp. 203 |
| Parties | Dana BLACKIE, et al., Plaintiffs, v. STATE OF MAINE, et al., Defendants. |
| Court | U.S. District Court — District of Maine |
John R. Lemieux, Maine State Employees Ass'n, Augusta, ME, for plaintiffs.
Peter Brann, Asst. Atty. Gen., Augusta, ME, for defendants.
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
In 1992, a number of state probation officers filed suit in this court seeking overtime compensation under the Fair Labor Standards Act ("FLSA"). They won. Mills v. Maine, 839 F.Supp. 3, 4-5 (D.Me.1993). Next, the State of Maine ended the sixteen percent salary premium all probation officers had previously received under the collective bargaining agreement as non-standard workers, and refused to negotiate a side agreement with the Maine State Employees Association ("Union") similar to those negotiated in 1985-1986 with other classes of law enforcement agents. The Mills plaintiffs and probation officer Dennis Becker then filed this suit, claiming that the State (and certain supervisors) had retaliated illegally against probation officers for filing the Mills suit. Both sides have moved for summary judgment. The relevant underlying facts are undisputed.
There has been an Article 10.C.,1 "Non-Standard Workweek," in the state employees' collective bargaining agreement since 1978. At that time, and before FLSA time-and-a-half overtime even applied to state employers, Article 10.C. provided that "nonstandard" employees were to be compensated at a rate sixteen percent above their base wage. "Non-standard" employees were those whose working conditions required them to work a variable workweek over forty hours that was capable of being scheduled only by the employees themselves.
In 1985, the United States Supreme Court applied the FLSA to the states. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 555-57, 105 S.Ct. 1005, 1019-20, 83 L.Ed.2d 1016 (1985), modified by 42 U.S.C. § 2000d-7. The State of Maine then evaluated state government positions to determine which ones could be considered exempt from FLSA overtime coverage. Within the law enforcement services bargaining unit, the State concluded that probation officers, among others, qualified for exemption, but that game wardens, game warden specialists, fire investigators, motor vehicle investigators, forest ranger I's, II's and III's, forest watchpersons, liquor enforcement officer I's, marine patrol officers and marine patrol specialists were not exempt. During 1985 and 1986, the State negotiated side agreements with these other categories to ease their transition from exempt to nonexempt status. Under the side agreements, these categories of state employees relinquished the non-standard sixteen percent premium and became eligible for overtime (as defined in the FLSA). Their new salaries, however, were increased four percent, apparently as a concession for relinquishing the sixteen percent non-standard premium.
During the months of negotiations preceding adoption of the 1986-1987 collective bargaining agreement for the law enforcement services bargaining unit, the State and the Union hotly contested the relationship between FLSA overtime eligibility and nonstandard status. Eventually, the parties agreed to add the following underlined language:
State of Maine-MSEA Agreement, Law Enforcement Services, Art. 10.C. at 13-14 (1986-1987).
The parties dispute the effect this language has on Article 10.C.'s interpretation. The plaintiffs claim that once probation officers were specifically designated as non-standard in Section 3, that designation was to last for the life of the contract. The State contends that non-standard status terminates whenever a class — like probation officer — fails to fulfill any of the three criteria of Section 1.
When certain state probation officers filed suit in this court on December 18, 1992, seeking overtime under the FLSA, Mills v. Maine, 839 F.Supp. 3 (D.Me.1993), the State's lawyer attempted to discuss settling the case with a side agreement, but the Union's lawyer refused. On December 21, 1993, Mills held that probation officers were not exempt from FLSA coverage. Id. at 4-5. On January 3, 1994, Nancy Kenniston, Director of the Bureau of Human Resources, issued a memorandum notifying probation officers that, given the Mills ruling, they no longer qualified as non-standard under Article 10.C. and that the sixteen percent salary differential would be terminated before February 6, 1994.
At a meeting between the State and the Union on January 27, 1994, the Union provided the State with a proposed side agreement. This side agreement was similar to side agreements the State had made with the game wardens and others in 1985 and 1986. At a subsequent meeting between the parties on February 2, 1994, Kenneth Walo, Director of the Bureau of Employee Relations, rejected the Union's side agreement.
The plaintiffs maintain that the termination of the sixteen percent salary premium and the refusal to negotiate a side agreement were each retaliatory actions prohibited by the FLSA.
To make out a prima facie case of retaliation for the State's termination of probation officers' sixteen percent premium, the plaintiffs must satisfy three elements: (1) that they engaged in protected activity, (2) that their employer took an adverse employment action against them and (3) that the employer's adverse employment action was taken because the plaintiffs engaged in protected activity. See Ramos v. Roche Products, Inc., 936 F.2d 43, 47-49 (1st Cir.), cert. denied, 502 U.S. 941, 112 S.Ct. 379, 116 L.Ed.2d 330 (1991).
Certainly the plaintiffs have shown that they engaged in protected activity in filing the Mills lawsuit. They have also shown an adverse employment action by the State in rescinding the sixteen percent pay premium. The only issue is whether the adverse employment action was taken because of their engaging in protected activity. Although the matter is hotly contested, I will assume for purposes of this decision that the plaintiffs have satisfied the causation requirement of the prima facie case as well. Nevertheless, for the reasons that follow I conclude that the State has shown on the summary judgment record that it would have reached the same decision and terminated probation officers' non-standard pay in any event because of a neutral reason, namely, Article 10.C. of the collective bargaining agreement. Treating this as a mixed-motives case, therefore, I conclude that the State is entitled to summary judgment on this issue because it has demonstrated that this action would have been taken regardless of any improper motives. See Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 1794-95, 104 L.Ed.2d 268 (1989), limited by section 107 of the Civil Rights Act of 1991, 42 U.S.C. § 2000e-5(g)(2)(B).
Article 10.C.2 is full of circularity. Section 1 begins by providing that "classifications listed in Section 3 which meet the following criteria exempt from FLSA; variable workweek over 40 hours; schedule determined by employee shall be designated as non-standard...," a statement implying that some of the classes listed in Section 3 meet the enumerated criteria and some do not.3 Section 3, however, provides that "the following classes are designated as meeting the above criteria" and then goes on to list various categories. Thus, all the classes listed in Section 3 are said to fit the criteria, despite the Section 1 provision that suggests some may not. Section 2 increases the circularity by providing that classifications "designated as non-standard" are to receive the sixteen percent pay premium "except that any position that is found by the Bureau of Human Resources not to be exempt from the Fair Labor Standards Act for overtime compensation purposes shall not be designated nonstandard." Is this a tautology, since the definition of Section 1 already includes the FLSA exemption requirement and Section 3 already lists the classes that meet the criteria?
The probation officers try to make sense of these varying provisions by arguing that Section 3 is a listing of the classifications that met the criteria as of the signing of the collective bargaining agreement, and that they as probations officers qualify for the pay premium until the termination of the agreement, notwithstanding any interim determination by a court or the Bureau of Human Resources that a particular class no longer qualifies for FLSA exemption. If that were the meaning, however, it could have been achieved much more easily. All Article 10.C. needed to say was that the specified classes (listing those enumerated in Section 3) shall receive the sixteen percent pay premium until the expiration of the...
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