     Case: 17-40839      Document: 00514680498         Page: 1    Date Filed: 10/12/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                        Fifth Circuit

                                                                                    FILED
                                                                                October 12, 2018
                                      No. 17-40839                               Lyle W. Cayce
                                                                                      Clerk

JUAN ESPINOZA; OMAR GARZA; ALBERTO REYES; ANTONIO
NARANJO; ROEL OLIVARES,

               Plaintiffs - Appellants

v.

SAN BENITO CONSOLIDATED INDEPENDENT SCHOOL DISTRICT,

               Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:14-CV-115


Before SMITH, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       The plaintiffs, police officers for the defendant, San Benito Consolidated
Independent School District (the School District), sued the School District for
various labor and retaliation claims. The district court eventually dismissed or
granted the School District judgment on all but one claim. A jury found for the




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
      Case: 17-40839   Document: 00514680498     Page: 2   Date Filed: 10/12/2018



                                 No. 17-40839
School District on the remaining claim. The officers appeal the district court’s
rulings, including some of its evidentiary rulings at trial. We affirm.
                       FACTS AND PROCEEDINGS
 I.    Budgetary woes and solutions
       At the end of the 2011–2012 school year, the School District was
experiencing budget problems stemming from legislative funding cuts and
increased health insurance costs. The shortfall was substantial, in part
because the legislature implemented a $5 million cut. Meanwhile, in March
2012, five officers of the School District’s police department—Juan Espinoza,
Omar Garza, Antonio Naranjo, Roel Olivares, and Alberto Reyes—filed a
complaint with the Department of Labor (DOL), alleging violations of the wage
and overtime protections of the Fair Labor Standards Act (FLSA).
       Prior to August 2012, in preparation for the 2012–2013 school year, the
School District created and approved a new budget that made significant cuts
to multiple programs. It cut funds to and reduced eligibility for the pre-
kindergarten program. It dissolved twenty-three teaching positions. It left nine
maintenance positions vacant. It cut the day care program. It eliminated
employee convenience leave. And, while the officers’ DOL complaint was
pending, it reduced the work days for all the officers in its police department
from 226 days to 187 days, essentially cutting the officers’ summer hours.
       In addition to its immediate budgetary concerns, the School District had
reason to reduce the police officers’ hours. There was less need for their
presence during the summer months when students were out of school. The
School District’s security costs were higher than those of neighboring districts.
The state had recommended that 65% of the School District’s budget be
allocated to costs directly associated with teaching, but it had not yet managed
to meet this goal. Additionally, the School District’s police department had
been organized with funds from a federal grant, which were exhausted in 2012.
                                       2
      Case: 17-40839   Document: 00514680498     Page: 3   Date Filed: 10/12/2018



                                 No. 17-40839
       In September 2012, after the cuts had been made, the School District
realized that it would receive an additional two or three million dollars in
funding because of an accounting error that was not discovered until after the
new budget’s approval. The School District was advised to save a portion of
those funds because it was possible that they would have to be returned. These
additional funds did not fully cover the shortfall.
       After discovering the additional funds, the School District hired twenty-
six security guards, but they were part-time employees without benefits and
were significantly less expensive than the police officers. The School District
also gave retention incentives and pay increases to all employees. But the
School District never reinstated or increased the officers’ hours; never revived
the daycare program, employee convenience leave, or the dissolved teaching
positions; and never filled the vacant maintenance positions.
       In November 2012, the DOL completed its review of the officers’
complaint and concluded that the School District had not violated the FLSA.
In December 2012, the officers filed an internal grievance with the School
District regarding their claim for overtime pay and the School District’s
decision to cut their work days, as well as some issues with their boss. Two
officers, Garza and Reyes, also reached out to the local District Attorney to
complain about police misconduct. In March 2013, an internal hearing officer
issued an opinion that ruled against the officers on nearly all their issues. All
their internal appeals to the School District’s board were denied.
II.    The officers’ lawsuit and pretrial pleadings and rulings
       The five officers sued the School District in July 2014. They alleged
overtime pay violations and retaliation under the FLSA, violations of the Equal
Pay Act (EPA), and retaliation in violation of their First Amendment rights
under 42 U.S.C. § 1983, among other claims not relevant to this appeal.


                                        3
       Case: 17-40839    Document: 00514680498    Page: 4   Date Filed: 10/12/2018



                                  No. 17-40839
        The School District moved to dismiss. The district court largely denied
that motion, except that it dismissed the EPA claims of three of the officers
after it determined they could not make out a prima facie case.
        The School District then moved for summary judgment on the remaining
claims. The district court granted judgment on all the officers’ wage-and-hour
FLSA claims and the remaining EPA claims, but denied summary judgment
on the FLSA retaliation and First Amendment retaliation claims.
III.    The jury trial
        A jury was empaneled, but after the officers presented their case-in-
chief, the School District moved for judgment as a matter of law. The district
court granted this motion in part, dismissing the officers’ FLSA retaliation
claims and three of the officers’ First Amendment retaliation claims.
Ultimately, the jury was asked to decide only whether the School District
retaliated against two officers (Garza and Reyes) for their protected First
Amendment activities (their complaint to the District Attorney). The jury
found in favor of the School District, concluding that no adverse employment
action had been taken against the officers. The officers moved for a new trial,
but the court denied their motion.
        The officers timely appealed, raising multiple issues.
                                 DISCUSSION
  I.    Dismissal of EPA Claims—Naranjo, Espinoza, Olivares
        This court reviews de novo an order granting a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). In re Katrina Canal Breaches Litig.,
495 F.3d 191, 205 (5th Cir. 2007). A plaintiff must plead “enough facts to state
a claim to relief that is plausible on its face.” Id. (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
        To establish a prima facie case of discrimination under the Equal Pay
Act, a plaintiff must show that he received less money but performed work in
                                         4
      Case: 17-40839   Document: 00514680498     Page: 5   Date Filed: 10/12/2018



                                  No. 17-40839
a position requiring equal skill, effort, and responsibility under similar
working conditions as a coworker of the opposite sex who is similarly situated.
See 29 U.S.C. § 206(d)(1); Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir.
1993); Jones v. Flagship Intern., 793 F.2d 714, 722–23 (5th Cir. 1986).
       The district court dismissed the EPA claims of Officers Naranjo,
Espinoza, and Olivares when it granted the School District’s motion. Those
officers argue that they successfully articulated a plausible EPA claim because
they alleged Officer Martinez, a woman, was promoted and received a raise
even though she had less experience and fewer credentials. The district court
determined that the officers had “not demonstrated that they performed work
in a position requiring equal skill, effort, and responsibility as Martinez.”
       The officers’ complaint does not explain how their job duties were the
same as Martinez’s. It alleges only that she received a pay raise “even though
she had less experience than [the officers].” The officers failed to plausibly
allege that they and Martinez performed equal work under equal conditions
with equal skill. We affirm the district court’s dismissal of the three officers’
EPA claims.
II.    Summary Judgment
       We review a district court’s grant of summary judgment de novo. Bridges
v. Empire Scaffold, L.L.C., 875 F.3d 222, 225 (5th Cir. 2017). “Summary
judgment is appropriate if ‘there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.’” Id. (quoting FED.
R. CIV. P. 56(a)).
   A. FLSA wage-and-hour claims
       All five officers contend that the district court erred when it granted
summary judgment against them on their FLSA wage-and-hour claims. The
FLSA requires employers to pay certain employees no less than time-and-one-
half their usual rate for all hours worked above the standard 40-hour
                                        5
    Case: 17-40839     Document: 00514680498      Page: 6   Date Filed: 10/12/2018



                                   No. 17-40839
workweek. See 29 U.S.C. § 207(a)(1); Black v. SettlePou, P.C., 732 F.3d 492,
496 (5th Cir. 2013). One method of complying with the overtime payment
requirement is the “fluctuating work-week” method (FWW). “The FWW is an
employment arrangement in which an employee receives a fixed weekly pay
for a fluctuating work schedule with a varying number of hours worked each
week.” Black, 732 F.3d at 496. Section 207(k)(1) provides a separate exception
to § 207(a), requiring instead that a law enforcement officer who works more
than 171 hours in a period of 28 days receive overtime. 29 U.S.C. § 207(k)(1);
see also 29 C.F.R. § 553.230(b).
      The district court concluded that the officers failed to provide any specific
facts showing that the School District violated the FLSA. Although there was
testimony that they were on call 24 hours a day, the district court found that
they failed to demonstrate how many hours they actually worked each pay
period. According to the district court, the only evidence the officers provided
to support their FLSA-violation claim was the deposition testimony of an
expert, Tomi Stefanos, “stating that the [officers] were never on a fluctuating
workweek [as the School District contends], but rather were on a fluctuating
time period” under section 207(k)(1). But the district court found that the
officers failed to explain “why such a difference is material” and failed to offer
evidence of how many hours the officers worked during the “fluctuating time
periods.” The court also noted that it was undisputed that the DOL found no
FLSA violations. Accordingly, it granted summary judgment in favor of the
School District.
      On appeal, the officers do not even attempt to explain their point about
the FWW. Instead, they argue that their theory explaining the FLSA violation
was in Stefanos’s report, which the district court did not consider. They do not
dispute that they failed to enter the report into summary judgment evidence
as required by Rule 56(c). They argue, however, that because they attached the
                                        6
    Case: 17-40839     Document: 00514680498      Page: 7   Date Filed: 10/12/2018



                                  No. 17-40839
report to a separate motion that the district court considered, the court should
have looked at the report.
      This court has held that “Rule 56 does not impose upon the district court
a duty to sift through the record in search of evidence to support a party’s
opposition to summary judgment.” Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915 n.7 (5th Cir. 1992). Thus, the district court did not err when it declined
to consider Stefanos’s report and determined there was no factual dispute
regarding the officers’ FLSA wage-and-hour claims. The DOL ruled against the
officers. The School District submitted evidence showing the officers were paid
using the FWW method. The officers provided no competent evidence to
contradict the School District or show it had improperly used the FWW or
otherwise violated the FLSA, either at summary judgment or on appeal. Nor
have they adequately explained on appeal how the School District violated the
FLSA. We affirm the district court’s grant of summary judgment to the School
District.
   B. EPA claims—Garza and Reyes
      Officers Garza and Reyes, whose EPA claims survived the motion to
dismiss but not summary judgment, argue that the district court erred when
granting summary judgment in favor of the School District because they
submitted evidence that they make less money than Officer Martinez but do
more work.
      As discussed above, to make out a prima facie case of discrimination
under the EPA, a plaintiff must show that he performed work in a position
requiring equal skill, effort, and responsibility under similar working
conditions as a coworker of the opposite sex who is similarly situated, but
received less money. See Chance, 984 F.2d at 153.
      It is undisputed that Officer Martinez has a Bachelor of Science degree
in Criminal Justice and Garza and Reyes do not. Under 29 C.F.R. § 1620.13(c),
                                        7
       Case: 17-40839   Document: 00514680498     Page: 8    Date Filed: 10/12/2018



                                  No. 17-40839
level of education can be a sex-neutral basis for difference in pay. It is also
undisputed that Officer Martinez performs duties that the two officers do not:
she was frequently assigned to a school with a higher incident rate and greater
student population than other campuses. So it does not appear that the male
officers have equal job qualifications or duties. In other words, “the [officers’]
job duties are not ‘nearly identical’ to those of their comparators; their positions
do not ‘requir[e] equal skill, effort, and responsibility under similar working
conditions.’” Fields v. Stephen F. Austin State Univ., 611 F. App’x 830, 832 (5th
Cir. 2015) (second alteration in original) (quoting Taylor v. United Parcel Serv.,
Inc., 554 F.3d 510, 523 (5th Cir. 2008); Chance, 984 F.2d at 153). We affirm
the district court’s grant of summary judgment to the School District.
III.    Judgment as a matter of law
        Under Rule 50, a district court can grant a motion for judgment as a
matter of law when “a party has been fully heard on an issue” but there is no
“legally sufficient evidentiary basis to find for the party on that issue.” FED. R.
CIV. P. 50(a)(1). “We apply the same standard of review as the district court did
in reviewing the court’s grant of judgment as a matter of law . . . .” London v.
MAC Corp. of Am., 44 F.3d 316, 318 (5th Cir. 1995). All reasonable inferences
from the evidence presented must be drawn in favor of the non-movant. Id. A
motion for judgment as a matter of law can be granted only if a rational jury
could not find their way to a contrary verdict. Robertson v. Bell Helicopter
Textron, Inc., 32 F.3d 948, 950–51 (5th Cir. 1994). “If there is substantial
evidence—that is, evidence of such quality and weight that reasonable and
fair-minded jurors might reach a different conclusion—then the motion should
have been denied.” Id. at 951.
   A. FLSA retaliation claims
        To make out an FLSA retaliation claim, “a plaintiff must make a prima
facie showing of (1) participation in protected activity under the FLSA; (2) an
                                         8
    Case: 17-40839     Document: 00514680498      Page: 9   Date Filed: 10/12/2018



                                  No. 17-40839
adverse employment action; and (3) a causal link between the activity and the
adverse action.” Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 624 (5th Cir.
2008) (emphasis and quotation omitted). The plaintiff must also prove by a
preponderance of the evidence that “the adverse employment action would not
have occurred ‘but for’ plaintiff’s protected activity.” Kanida v. Gulf Coast Med.
Pers. LP, 363 F.3d 568, 580 (5th Cir. 2004).
      Determining whether discrimination occurred requires application of the
Supreme Court’s burden-shifting framework from McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Hagan, 529 F.3d at 624. Under that framework—
as applied to FLSA retaliation claims—if a plaintiff makes out a prima facie
case, then the defendant must articulate a legitimate, non-retaliatory reason
for the adverse employment action. Id. The burden then shifts back to the
plaintiff to offer evidence that this reason is pretextual. Id.
      The district court found that the officers articulated a prima facie case
when they showed that their yearly work days had been reduced from 226 to
187 after they filed a complaint with the DOL, followed by bonuses and the
hiring of security guards. But the district court also found that the School
District articulated a legitimate, non-retaliatory reason for the adverse
actions—the budget shortfall. The School District cut numerous programs and
reduced the number of hours for the whole police department, even for officers
who did not file DOL complaints. The bonuses and hired security guards were
attributable to the unforeseen windfall. Finally, the district court found no
evidence of pretext.
      On appeal, the officers urge that it is undisputed that the School District
had options when deciding whether to cut their hours and this shows a factual
issue about whether the cuts were pretextual. The officers also reject the notion
that a budget crisis can count as a legitimate, non-discriminatory reason for
taking adverse employment actions. The officers finally contend that, because
                                         9
    Case: 17-40839         Document: 00514680498           Page: 10     Date Filed: 10/12/2018



                                         No. 17-40839
there were differing accounts as to whether the School District was even
suffering a budget crisis, judgment as a matter of law was inappropriate.
       Although the School District cut the officers’ time when it had other ways
of meeting its budgetary constraints, this does not create a fact issue for a jury,
negate the legitimacy of the proffered reason for cutting the days, or show
pretext. The School District offered legitimate reasons for why it made cuts to
the police department in particular. Importantly, it cut the hours of all the
officers in the entire department, not just the ones who had engaged in FLSA
protected activity. Without any other evidence of pretext, there was not enough
evidence for a rational jury to rule in the officers’ favor.
       The district court was also right to conclude that the testimony of Yliana
Gonzalez, a school district board member who testified that she did not believe
that the School District was facing a budgetary crisis in 2012, was “without a
sufficient personal knowledge predicate to be helpful to the jury.” It was
“undisputed that [Gonzalez] was not involved in the details of the [School
District’s] budget items.” As such, there was no “legally sufficient evidentiary
basis” for the jury to decide that the School District experienced only a
budgetary surplus and no crisis. FED. R. CIV. P. 50.
       We affirm the district court’s grant of judgment as a matter of law to the
School District on the officers’ FLSA retaliation claims.
   B. First Amendment retaliation—Espinoza, Naranjo, and Olivarez 1



       1  The School District urges that Federal Rule of Appellate Procedure 10(b)(2) bars
consideration of this issue because the officers failed to file a trial transcript and so the three
officers’ testimony is not in the record. An appellant’s failure “to provide a transcript is a
proper ground for dismissal of the appeal.” Richardson v. Henry, 902 F.2d 414, 416 (5th Cir.
1990) (citing Coats v. Pierre, 890 F.2d 728, 731 (5th Cir.1989)). However, dismissal is not
mandatory. Coats, 890 F.2d at 731. When this court has declined to exercise its discretion to
dismiss arguments on appeal when not all the relevant evidence was submitted, the court
“necessarily limit[ed] the scope of [its] review to the available record.” Boze v. Branstetter,
912 F.2d 801, 803 n.1 (5th Cir. 1990).
                                               10
    Case: 17-40839       Document: 00514680498          Page: 11     Date Filed: 10/12/2018



                                       No. 17-40839
       To establish a First Amendment retaliation claim, the officers must show
that (1) they suffered an adverse employment action; (2) they spoke as citizens
on a matter of public concern; (3) their interest in speaking outweighed the
School District’s interest in promoting efficiency; and (4) their speech
motivated the School District’s adverse action against them. See Harris v.
Victoria Ind. Sch. Dist., 168 F.3d 216, 220 (5th Cir. 1999). Only the second
prong is at issue. “[W]hether a statement addresses a matter of public concern
is a question of law that must be resolved by the court.” Graziosi v. City of
Greenville, 775 F.3d 731, 736 (5th Cir. 2015).
       The district court dismissed Officers Espinoza’s, Naranjo’s, and
Olivarez’s claims because their DOL complaint “only raised wage issues” and
so was “solely personal, and not a matter of public concern.” As to their internal
grievances, they primarily concerned “management policies” but also alleged
sexual harassment and police misconduct and so presented “at most, a ‘mixed
speech’ situation” that the court held was not protected under Teague v. City
of Flower Mound, 179 F.3d 377, 380–81, 383 (5th Cir. 1999) (finding the “mixed
speech” about police misconduct made in the context of an employer-employee
dispute not to be a matter of public concern).
       On appeal, the officers contend that the district court erred when it held
that they did not speak on a matter of public concern. 2 “Speech involves
matters of public concern when it can be fairly considered as relating to any
matter of political, social, or other concern to the community or when it is a




       2 The district court did not discuss or determine whether the officers spoke as citizens
on a matter of public concern. The officers were speaking as citizens because they complained
to the DOL. See Gibson v. Kilpatrick, 838 F.3d 476, 482 (5th Cir. 2016) (“If ‘a public employee
takes his job concerns to persons outside the work place in addition to raising them up the
chain of command at his workplace, then those external communications are ordinarily not
made as an employee, but as a citizen.’” (quoting Davis v. McKinney, 518 F.3d 304, 313 (5th
Cir. 2008))).
                                              11
   Case: 17-40839     Document: 00514680498      Page: 12   Date Filed: 10/12/2018



                                  No. 17-40839
subject of legitimate news interest; that is, a subject of general interest and of
value and concern to the public.” Gibson v. Kilpatrick, 838 F.3d 476, 482 (5th
Cir. 2016) (internal quotation marks omitted) (quoting Lane v. Franks, 134 S.
Ct. 2369, 2380 (2014)). “[P]ublic concern must be determined by the content,
form, and context of a given statement, as revealed by the whole record.” Id.
(alteration in original) (quoting Connick v. Myers, 461 U.S. 138, 147–48 (1983)).
      As to content, the DOL complaint dealt solely with the officers’ wage-
and-hour dispute. “Speech that ‘is related only to [a] superior’s employment
decisions’ and that affects a plaintiff ‘in a purely personal manner’ is not a
matter” of public concern. Id. at 484 (quoting Rathjen v. Litchfield, 878 F.2d
836, 842 (5th Cir. 1989)). The district court properly held that the officers’
speech in the DOL complaint was not on a matter of public concern.
Meanwhile, the officers’ internal grievances were primarily personal
grievances about pay and management in the police department, although
there was apparently some hearing testimony about sexual harassment and
investigatory decisions that could arguably be considered public matters. The
officers were also seeking primarily personal and employment-related relief,
which weighs against finding the speech to be on matters of public concern. At
most, the speech in the internal grievances was “mixed speech.”
      The form of the officers’ speech also weighs against finding it to be on a
matter of public concern. The officers are correct that their grievances are
distinguishable from the private lawsuit in Gibson. However, they filed only
internal grievances and did not choose “to inform someone outside” of the
School District of their issues. Modica v. Taylor, 465 F.3d 174, 181 (5th Cir.
2006). Moreover, the primary focus of the grievances related to personal
complaints. Compare id. (finding “the majority of [the plaintiff’s] concerns did
not relate to her personal grievances”), with Teague, 179 F.3d at 383 (finding


                                       12
      Case: 17-40839   Document: 00514680498      Page: 13   Date Filed: 10/12/2018



                                   No. 17-40839
a grievance letter to be “undeniably private in form” because it sought personal
redress).
        Finally, the context of the officers’ speech suggests that it was not about
a matter of public concern. In Gibson, this court held that speech “is not on a
matter of public concern if it is made solely in ‘furtherance of a personal
employer-employee dispute.’” 838 F.3d at 486 (quoting Salge v. Edna Indep.
Sch. Dist., 411 F.3d 178, 187 (5th Cir. 2005)). Another contextual consideration
is whether the “speech occurred ‘against a backdrop of widespread debate in
the community.’” Id. at 487 (quoting Markos v. City of Atlanta, 364 F.3d 567,
572 (5th Cir. 2004)). The officers made their internal grievances primarily in
furtherance of a personal employer-employee dispute. And they have presented
no evidence of a widespread public debate about the budget crisis or the
management of the School District’s police force.
        The officers have not demonstrated that their speech to the DOL or the
School District implicates a public concern or deserves First Amendment
protection. We affirm the district court’s judgment as a matter of law in favor
of the School District on the First Amendment retaliation claims of Officers
Espinoza, Naranjo, and Olivarez.
IV.     Evidentiary Rulings
        Finally, the officers contend the district court erred when it excluded
some testimony at trial and instructed the jury to disregard “opinion and
reputation testimony” showing that the School District allegedly has a history
of improper retaliation.
        “A district court’s evidentiary rulings are reviewed for abuse of
discretion.” United States v. Lowery, 135 F.3d 957, 959 (5th Cir. 1998).
“However, even if the district court erred in its evidentiary rulings, such error
can be excused if it was harmless error.” Id.


                                         13
    Case: 17-40839        Document: 00514680498          Page: 14      Date Filed: 10/12/2018



                                        No. 17-40839
       We need not reach the question of whether the district court erred in its
evidentiary rulings, as any error was harmless. The jury ultimately found that
neither Officer Reyes nor Officer Garza—the only officers whose retaliation
claims went to the jury—had been subjected to an adverse employment action,
a necessary condition to finding liability on a First Amendment retaliation
claim. The officers do not challenge the jury’s finding on appeal. 3 The excluded
testimony goes to elements such as policy and custom, and thus, even if
admitted, would not have changed the jury’s finding that the School District
took no adverse employment action against the officers.
                                      CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s rulings.




       3  In their reply brief, the officers state that “Appellee’s belief that Appellant did not
appeal the jury’s verdict is wholly inaccurate.” But merely stating this does not make it so.
The officers did not argue that no rational jury could have found that the school district did
not take an adverse employment action against them and so failed to challenge on appeal the
jury’s finding.
                                              14
