Case: 18-20180      Document: 00514941774         Page: 1    Date Filed: 05/03/2019




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

                                                                                 FILED
                                      No. 18-20180                            May 3, 2019
                                                                            Lyle W. Cayce
JESSE O’QUINN; ALBERT BENNETT,                                                   Clerk


              Plaintiffs - Appellants

v.

CITY OF HOUSTON, TEXAS,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-1203


Before JONES, HO, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Jesse O’Quinn, an employee of the Houston Fire Department, found a
hangman’s noose in a fire station locker. Understandably, O’Quinn and his co-
plaintiff Albert Bennett, both African-American males, brought the noose to
the attention of the Executive Assistant Chief of the station.                   After this
meeting, O’Quinn and Bennett allege they were subjected to racial
discrimination, a hostile workplace, and retaliation for reporting the noose. So


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                         No. 18-20180
they sued the City of Houston on those theories. The district court granted
summary judgment to the City. We affirm, for essentially the reasons offered
by the district court.
       We separately address the retaliation claim because it was the issue that
dominated oral argument. The district court concluded, as we do, that O’Quinn
and Bennett offered insufficient evidence of an adverse employment action. 1
On appeal, plaintiffs’ only theory of recovery is that they lost overtime wages.
And at oral argument, plaintiffs’ counsel offered a compelling narrative that
O’Quinn and Bennett lost overtime opportunities because of the City’s alleged
retaliation, costing them approximately $20,000 a year. Oral Arg. 3:15–3:30.
       If the record supported this conclusion, we may well have reversed. After
all, losing $20,000 in overtime wages—approximately 40% of the plaintiffs’
$45,000–50,000 base salary—would certainly “dissuade[] a reasonable worker
from making or supporting a charge of discrimination.” Burlington N. & Santa
Fe Ry. Co. v. White, 

, 68 (2006) (quoting Rochon v. Gonzales, 

, 1219 (D.C. Cir. 2006)). Cf. Brooks v. Firestone Polymers, L.L.C., 640
F. App’x 393, 397 (5th Cir. 2016) (per curiam) (“We have no precedential
authority in our circuit establishing whether a denial of overtime constitutes
an adverse employment action.”).
       But the assertions made by counsel at oral argument find no support in
the record.      For example, counsel stated that O’Quinn testified that his
“number of assignments decreased” which “cost [O’Quinn] approximately
$20,000” in overtime wages. Oral Arg. 2:10–4:39.




       1 “To establish a prima facie case of retaliation, the plaintiff must establish that: (1) he
participated in an activity protected by Title VII; (2) his employer took an adverse
employment action against him; and (3) a causal connection exists between the protected
activity and the adverse employment action.” McCoy v. City of Shreveport, 

,
556–57 (5th Cir. 2007) (per curiam).
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                                 No. 18-20180
      We find no record support for those representations. First, O’Quinn
never once claimed he lost overtime opportunities. Instead he says that he lost
some assignments and that the assignments he did receive were less favorable
ones. But he never says any of these changes affected his overtime. Second,
O’Quinn disclaimed that he lost any wages as a result of the City’s alleged
retaliation:
      Q. What wages are you saying that you lost as a result of the
      events that form the basis of your lawsuit?
      A. I didn’t say that I lost wages.
      Q. Okay. What are you seeking out of this lawsuit? What is it
      that you want from the city?
      A. Well, I actually want the city to at least have an admission of
      what happened.

O’Quinn therefore has provided insufficient evidence of retaliation.
      As for Bennett, counsel represented that his overtime assignments were
“cut entirely” and that Bennett had offered evidence of lost wages. Oral Arg.
4:40–8:40. True enough, unlike O’Quinn, Bennett actually mentioned losing
overtime and claimed lost wages as a result. But he did not provide any
evidence of which assignments he lost, how many assignments he lost, or the
resulting decrease in his wages. In short, Bennett provided no evidence that
would allow a jury to find lost wages.
      Accordingly, because the record facts do not support the claims made at
oral argument and cannot defeat summary judgment, we affirm.




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