case and it's a very good example almost a perfect example of how rule fifty six has been increasingly missed some plot by the district court and in which the district courts have been requiring the plaintiffs and holding pla immediately after they reported it they had assignments cut overtime opportunities cut and it's extremely important for a five firefighter to have that additional pay these these firefighters at this time they were earning around forty five to fifty thousand dollars per year for doing what they were doing and so what many of them do is they supplement that income by doing extra things working community of that it's teaching certification plaintiffs they really misrepresented the evidence and then the district court sort of misapplied and misconstrued the evidence offered by the plaintiffs and so here's  here's where specifically the district court or what the city of houston argues with respect to o'quinn is that he he didn't provide the level of detail they claim was necessary to support his claim for lost assignments in they they make that claim to the district court in the record of one sixty three and in the brief one thousand and twenty but that's that's quinn testified to is that his assignments immediately after the reporting of the noose incident were cut from approximately twenty down to three to five and what happened was  immediately after they reported the news mr o'quinn found that he was given the assignment the extra summits that nobody else wanted now he was willing to do them but because he was only given the assignments that nobody else wanted his assignments were cut and his pay was dropped accordingly is he the one who was taking people to the firemen museum yes ok and did he get extra pay for that he did he know kind of after the reporting the news that's all the assignments he received and so mr o'quinn testified the number of assignments decreased from twenty to around three to five and then gave a calculation that that cost him approximately twenty thousand dollars over the following year and so certainly enough detail that would allow mr o'quinn to get to a jury proving his case  the adverse actions taken against him and so the theory there were time hours like somebody else or to say severe they went to somebody else and mr o'quinn knew that because he saw on the assignment board he could see all of the extra assignments  and like i said gave the give the calculation that cost him approximately twenty three thousand and over time pay which he used which he would have used to supplement his income with respect to mr bennett  immediately after reporting the noose hit his over time assignments were cut entirely and what mr bennett did to our own supplemental pay was he taught certification classes on saturdays and there were approximately two per month that he taught regularly over an extended period of time then immediately after he reported the noose incident those assignments were cut and in judge show there is a little bit of respect to punctuality couldn't really give details about it but acknowledged that those types of details would have caused her to cut the assignments and so with respect to mr bennett he testified that his classes were cut and this is particularly egregious with the what the city did when they moved for summary judgment they claimed they misrepresented what the adverse actions were they claim that it was simply a  they were supposed to watch him closely now those actions we are not suing for independent damages for those actions but they certainly give evidence of the intent of discrimination and retaliation but what the city didn't acknowledge was that mr bennett was also saying that his his sort of occasion classes were cut and when you look at the record  portion of testimony where he talked about the classes that he was cut and so when we responded to the summary judgment we put that in the record and so that would be at three fifty seven  where that sort of language appears that was amended from the city of houston and what mr bennett testified to is that he couldn't and there were two forms of extra assignments that mr bennett did there were the events like mr o'quinn did but there are also that the teaching the classes and mr bennett testified i can't remember the events i can't remember off the top of my head right now but i do recall specifically the classes that were taken from me and so he did provide the level of detail or at least offer to the city of houston tellingly never followed up didn't ask him about that and he wanted to mr bennett sa you know you know i can tell you about the classes in city in the depositions like no no let's let's talk about the other things and so in the other discover responses mr bennett they did that there were  you to show a nuff if you have enough evidence of an adverse action to support a genuine issue for the journey and so when the when the district court held that that level of detail and supporting information was not there we think that as has been a and increasingly done over time by the district court we think that it's sort of morphing rule fifty six into instead of requiring to show a genuine issue of material fact that they're really asking the plaintiffs to effectively prove their case that the motion for summary judgment stage and that is just not is what is required well i assume i assume you argued all this to the district court right when you look at where the district court sided to the deposition testimony it seemed for she said well he can't or can't remember the events but then when it came to the classes  she said he couldn't remember those either and that's not true with respect to the deposition testimony that's in the record at three fifty seven he states specifically i can't remember the events but  remember the classes i was scheduled to teach that i was told you can't do this now record that one eighty five for mr o'quinn and three fifty seven for bennett for mr bennett that occurred immediately after they reported the noose incident and so and then the district court also stated that mr bennett could not remember the details  of of the classes that's not in the record and mr bennett was not even asked about that in his deposition and in the in the discovery that we provided to the district court at six forty three in the record mr bennett stated that it was approximately two per month and in those were cut and so we think that that is the level of detail necessary to get to a jury and mr paid their four hundred four hundred fifty dollars filing fee paid for the service paid for depositions to be taken they deserve their day in court and with respect to the hostile work environment and the discrimination in by the way the statement by the captain admitting to cutting the assignments is in the record of four thirty eight and so we think that this case clearly belongs before a jury that can view the i please the court i'm robert davis in for the city of houston and judge gilmore did not misread the record fact she covered it very thoroughly and her order and she something that has its importance been a little bit skipped over here is the way mr o'quinn and mr bennett reported seeing this news first of all it wasn't enough our station where they were ordinarily working they work in the public affairs division and then they were at an event at our station forty one and so as mr o'quinn was walking where is fire station forty one while your honor i just really don't know where a fire station forty one is i'm sorry what part of the city was i i don't even know i guess this is this is a problem of too narrow a focus on my part sometimes is like here it is this is a like what matters but obviously that's a that's a good question i wish i knew this but to be an offensive racially insensitive at best offensive symbol and at least sometimes often it's taken that way and so so that no one else would see it he stood in front of it until everybody was gone and so they that have far more surrounding racial animosity type of conduct that that whole that was not enough for a hostile work environment and and then it goes to the retaliation for the report of the noose but the report got into the local t v news i gather oh it did i remember this somewhat from two and there was just i don't tend to years ago i remember something about it vaguely i wasn't working at the city my memory more clearly if i had been but i remembered something about being in the local news yes it was and but that wasn't but that wasn't fake and they don't claim to have been the people who inform the news stations that's not a part of this case ok least yes it's not it's not a part of the case and but the report is there's a there's a chain of command of course in a fire department like there is in the police department they're kind of in some way  military in their structure you will think of firearms as being military but they do have a chain of command that's very important that they follow it and keep it keep it in force and disciplined so that they can be efficient in their operation and you know if there is a call when there is a you have a personal relationship with has a great appeal to me i like the idea that i could skip over some levels in the chain of command but i don't work in a structured environment like that and if i did i would have to follow it just like mr o'quinn mr bennett we're expected to do now they have this chain of command they skipped over two levels to get up to assistant chief rick flanagan they should have gone to captain beda kent who was a media supervisor know the facts i mean you know they had to form forty two and then it's suggested something unfavorable but then they exit out and so on well exactly and so this was florida mr bennett thought was the retaliation but then it just disappear and so there isn't any retaliation and then both mr bennett and mr quinn were getting favorable reviews and then mr odum passed the captain's exam mr quinn got promoted to captain there was no adverse action against disadvantaged in over time and other activities for the entire limitation you know two or three years of limitations or what i don't get that from the record i've given it was a relatively short so but there was no indication that there was anything else going on during that five and a half years i just wondered because mr o'quinn says to mr i'm sorry ahmed says mr o'quinn estimated he had lost about twenty thousand a year well and and that was in his deposition and i don't believe there are some doc any documents to back that up of course there are that even if that is a material issue they don't have the material issue of whether that's a an adverse action because neither one of the two men showed any comparative ors they didn't say that here so and so who's getting this more than me even though one of them says yes i think i know who who got this they didn't come forward with that evidence at this stage i thought i just heard though about those hours and other people but they didn't say other people didn't like the pardon pardon me for  dollar they didn't say who that was they didn't have any evidence that there were other comparisons to have a compared or you got to be specific and point out who it is you know this person who is different from me in this way and so why isn't that enough aren't from missing something why is it enough for them to say i made a complaint about the extremely offensive racial act all i know is all of sudden my overtime hours were away and it was because they were necessary but i'm you know you give it to the field it was distributed amongst everybody else would complain is that are you saying that's not enough i am saying that that's not enough but also because they would need something not because just making a conclusory statement or some other people got it isn't any evidence to show that they were those hours still continued to be available and were given to somebody else and that it was because of a complaint about because of a protected activity and remember we have to go back to i if your point is or the hospital action that's a stark lie i take their argument to be that this happened is actually right after the line well i think that i think our case a proximity of your case i think time might be enough to get to a jury and i'm mistaken about that i think it's not too long i think i think i think the timing might be within a close enough period for that but again we have to go back to what may have triggered that anyway which was the discipline if you want to call it that over skipping over two levels of chain of command ok that's a different argument there area or say they were retaliated against because of a complaint that's protected exactly said they were tell you were touted against because of breach of the chain of command said the close proximity is enough to imply a potential for that i might be mistaken about that but your honor and i apologize for not having the time right here in my mind this is my goodness this is this is two things that this panel has already i mean one more strike excuse of that doesn't undo i mean it doesn't go well a back in time and say well we couldn't really uphold the chain of command we have to have the chain of command and so there's nothing that they brought forward to say that the chain of command really shouldn't have been enforced because this discipline the disciplinary action if you recall is an adverse action in this way action happened before chief brisky came along and said it was all right for you you overtime hours or is it because of impossible retaliation and today that sounds like a jury question except that they don't have any comparative words to show they couldn't of how could the fire department have arbitrarily removed over time hours without documenting it and going through some sort of civil service type you know complaint discipline process right well the firefighters are not entitled to those their discretionary with their superiors really and yes and so they can make those decisions their management decisions and it's it's similar to the employment cases from this court in the u s supreme court where you you have this this principle that courts cannot be super personnel departments and micro not just i was just asking the procedural question because i just assumed th was overlaid with all sorts of you know due process concerns but you're saying not well well because there's not a property right to that and so it's already a process issue it's where i was going with the other quote was not to suggest that this court was going to try to be a super personal apart but the rest of that principle is that those decisions are business type decisions are left to the employer and so this isn't taking away something that they're entitled to this is just making to say ok what are we doing here how many of these do we have what need do we have and who's most appropriate for it all right now when you say that to to bring in overtime claim like this you have to  i think that we have you know look at the look at felton or burlington these these are really talking about how describing what ultimate decision ultimate employment decisions are hiring and  granting leave discharging promoting and compensating is felt in this case and this court's case three fifteen if third for seventy four seventy sixty thousand to case and that's really is explaining what rise to the level of adverse action and here they haven't really established that the terms and conditions of their employment were or diminished and as already mentioned they kept getting positive reviews likely that the firemen would make fifty percent above the scheduled salary because of overtime and outside activities i think that's possible where does the money come from does that come from the fire department budget or to succumb from the people to whom the certification things are given i believe it's from the fire budget if the court wants i can assuming that yes they would have to affirmatively show you here so and so who's different from me in this way and they're getting it and i'm not getting i'm being treated less favorably than that person and but i believe that judge gilmore correctly read the facts in the record and frankly apply the law breaker summary judgment and i'll just leave it there if you don't have the other questions evidence that no they are not needed and you have this close of time in the over in the assignments are cut you don't need course you're saying under our presidents yeah kind of proximity is is enough to get a measure of turn to  assignments again mr o'quinn testified that the assignments did go to other folks because he could see the board and again we're going back to my initial point we're getting into the difference between what's enough to get to a jury versus what we have to prove our case to a jury and and so yeah i mean we might bring other evidence at trial but we're not required to with the summary judgment stage so we have cases that say that generally speaking  t lost over time opportunities are not an adverse employment action i don't believe so judge i think under the burlington case it is what would dissuade someone from filing a complaint like this and when you have somebody who makes fifty percent of their pay and other assignments and those are cut that would certainly rise to that level and if the fell people in fire station forty one do they have the same kind of compensation procedure where they depend heavily on over time in special events yes you know i mean that's that's across the board at the fire department and frankly their schedules are set up because you know there are a lot of firefighters ar hewson and you can only afford to pay them so much and so they have their schedules arranged that allows them to have the flexibility to do those other things to supplement their income and so yes if you're going to take away fifty percent of their income that would certainly constitute an action that would dissuade somebody from filing a complaint and so with respect to mr bennett and i believe it's on the record at three fifty seven where he talks about the classes he was a little unclear about what happened to those classes admittedly but from our perspective we think that the classes certainly continue because you can't just do away with them but even if that occurred in the reason was because he complained that would be retaliation unless they could you know come in and offer some legitimate number tallit or reason for example we had to come from the budget or something they've not offered them and we don't think that's because we don't think that occurred  about protected activity judge gilmore she got that right all you have to do you don't have to strictly follow the chain of command when you are opposing illegal discrimination and so they reported it they made it known to let me ask you did anything ever happen to whoever was had placed a noose in the locker are interesting is no there was no discipline taken i mean i assume someone it was pretty readily  discoverable who whose locker was involved right it was so they knew it was a captain's locker they knew who it was which captain and there was no discipline taken for for having that news and there is a picture of the noose in the record i don't have the site off the top of is you know the city of houston their whole approach and to some extent the district court's approach has been just looking at it only one sided from the plaintiff's perspective well that's not how you look at it under a rule fifty six i mean it's the defendant's burden forward and show that there is no evidence on the central element and they have not done that and they say well actually it's your burden on rule fifty six to show that there's a genuine issue of material fact well you they don't have to say anything to file their motion but you have to say they saw a genuine issue well that's correct but when they do that if that is the approach if they're not going to try to disprove our case we can come