     Case: 10-10686 Document: 00511391111 Page: 1 Date Filed: 02/23/2011




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

                                                 FILED
                                                                          February 23, 2011

                                     No. 10-10686                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



ED LEPS

                                                   Plaintiff-Appellant
v.

FARMERS INSURANCE EXCHANGE

                                                   Defendant-Appellee




                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 3:09-CV-780


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Ed Leps sued his former employer, Defendant-Appellee
Farmers Insurance Exchange (“Farmers”), alleging retaliation under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. §201, et seq. Leps claimed that he was
fired after engaging in protected conduct. The district court granted Farmers’s
Motion for Summary Judgment and dismissed Leps’s action. We affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10686 Document: 00511391111 Page: 2 Date Filed: 02/23/2011



                                  No. 10-10686

      Leps asserts that his firing was in retaliation for his acts in connection
with Farmers’s rules, regulations, and policies for overtime pay to adjusters like
himself. Specifically, Leps contends that his suggestion at a company meeting
that representatives of management leave the room so that the assembled
employees could more freely discuss their concerns with overtime policies; and,
thereafter, his submission of claims for overtime either in excess of pre-approved
quantities or not previously approved at all, led to his firing on July 10, 2008.
He asserts that the reason given for his firing was his working unauthorized
overtime hours on two days in the previous month. Leps also contends that the
motivation for his firing was his expression of concern to a supervisor in
February 2008 that he did not want to cut himself short on overtime hours.
      The district court carefully considered the positions of the adverse parties
and concluded that, pursuant to Hagan v. Echostar Satellite, L.L.C., 529 Fed.3d
617 (5th Cir. 2008), the incidents alleged by Leps to have constituted protected
activity did not rise to that level but, rather, constituted abstract grumblings or
vague expressions of discontent and were thus not actionable under the relevant
provision of the FLSA.     The court determined that Leps had not set forth
sufficient evidence to raise a genuine issue of material fact whether he engaged
in protected activity, thus failing to present a prima facie case of retaliation,
absent which his action should be dismissed via summary judgment.
      We have now reviewed de novo the briefs and other filings of the parties
on appeal as well as the record on appeal and the law applicable to the action of
Leps for retaliatory firing. As a result, we are convinced that the district court
properly granted the Motion for Summary Judgment on behalf of Farmers.
Thus, that court’s Judgment of June 15, 2010 should be, and hereby is, in all
respects,
AFFIRMED.



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