just wait wait everyone get settled i compliantly other one of those is a free speech complying they have a little bit different standards they're set out in the brief and also the trial judge followed that the to allow all of these reductions and what we are just that those were the fact that the court did not allow those issues to go to the jury that those words fact l or was created it's an argument to respond to this and we had it at all types of areas of the school i mean it wasn't just these officers there was cutting yes shot of but they did all that they could all these different departments just to get back at your clients that's the theory no there was cutting but our clients had begun to raise issues and then they became target i mean they had they did behavior in those areas they were five police officers who were within a union who basically had organized an order to try to get some trade has and then there were the ones who were looked at and there were options were available i mean where it's who need to find the work i mean just the fact that there might have been time to do it does not mean that they were able  ut we talked also about the retaliation on the free speech and the speech issues are involved that's was out one line by the trial judge of under  gibson case and basically the issue that turned on was whether or not this was a public issue or private contract and gibson had said well in that case it was a private contract between two really not the case we had five people involved in this we had reports according to the evidence that they'd taken to not only school board the superintendent but also the labor board and also the district attorney's office gibson they just went forward by the following directly in the lawsuit without raising that we also had a difference because of the what was described as the as the public fisc and that was that there was money involved and these officers were augie arguing retaliation or misappropriation of the money they're also arguing that there were bad working conditions on both the hours for other purposes their police officers for school district and so their working conditions going and impact the community as whole and the children of the parents in that school so they had bro much the strictest on the evidence that they were able to present because i think would suggest it was just an unwillingness to listen to pay in a reputation testimony about the character of that of that school district it was the trial judge did up most of the objections and basically what she would say well you know these are rumors and sort of thing she was willing to hear individual actions which i suggest may well have been excluded under for all four and four or five that she was not willing to hear general general reputation we heard that it would have been hearsay and word hearsay there's a specific exception that allows that it was the only basis here for them to be able to prove the policy of the school district and so we needed to be able to i would first like to address why the court erred in granting the motion for summary judgment as to the officers of all us a claim and that would be because a factual dispute occurred and that factual dispute has to do with what the expert for the officers contended in her deposition transcript which was submitted to the court and in her report along with the findings as to how much each officer would make if this if they were to be paid correctly  submitted to the court and the court in her finding and for the summary judgment motion only considered the court's i'm sorry only considered the experts transcript opposition transcript she did not take into consideration the what will this is not the summary judgment stage and so what happened in this issue is is the judge ruled on the summary judgment and ruling on her summary judgment she ruled on four other motions one of the motions was a motion to strike that the district had filed  our expert witness and in our response we attached to the expert report along with her findings in the deposition transcript we included everything so that the court we get an idea as to what we were alleging and how much money was o to these officers it was not attached to the actual summary judgment but the court did take into consideration the deposition transcript in making her ruling in the summary judgment motion and the case little says this is the delta and pine land company first nationwide i grew business that in order to suss whether a disputed to any material five to exist the court considers all of the evidence in the record and so the fact that she considered the transcript but didn't consider the rest of expert report even though they were attached to gather and even though she address all of these issues in the summary judgment motion it is an issue and we believe that that is error on the on the district court and that is why that issue should be reversed in addition to that she gave more to the court gave more deference to the department of labor report and she did note that in her summary judgment response and the little the liquid air for case has held its factual controversies must be were solved in favor of the non movement nonevent and actual controversy exists when both parties have submitted evidence of contradictory facts the department of labor report clearly stated there was no wrongdoing in the plaintiffs the officers were not  did agree that the flushing working workweek could be applied but the district was not doing it correctly no matter what they should have been paid out of at a time and one half rate for overtime they could have done it as a fluttering work week they could have done it just straight over time but they weren't applying it correctly and in the motion for summary judgment on her and her order the courts vague as to what she actually was upon as to what the correct way was to pay them she really focused more on the fact that the the court did not want to search through the records that the expert report was not attached the summary judgment response and that the department of labor stated that there was no wrongdoing and so but in it they do talk about the a policy to  you back in the hours they were to what they were paid and then determine an hourly level and then you just have to add on the additional half if they worked overtime hours i don't know if i understand i don't know mary but i strange because i've seen a ton of these cases it's usually not complicated whether the people are paid overtime or not but here there's an exponent i mean it's usually pretty clear whether they were paid properly or not i don't i just don't quite get i don't get your theory of how they were wrong we paid well because of the fact that if they weren't being to pay time and a half so the seven k exception which they could pay them it's goes from a range of a seven day to a twenty eight day period but they weren't paying them like that if you which i don't you don't have the records in front of you but they were not paying them the time and one half which the seventy requires for them to be paid time and one half they were paying some other method which the officers did not agree with another to the expert it was not a time in one habit was a different paid properly well the deal did a partial dust audit and that was another issue that our expert brought up was that a partial does audit is not even a correct analysis they shouldn't be issuing a report because they did not review the entire record all of the records and so that was another issue that was presented to the district court was that the department of labor's apportioned be taken into consideration because it wasn't for a report it was a dust audit where they're not being paid time because they're more working overtime to eighty five hundred dollars by cutting down their days throughout the time that they've been officers there they've always been on a two twenty six schedule because you need police officers during the summer you have summer school you have programs you need officers on campus when they cut the days down it was right after they were notified that they had made the complaint to the department of labor and they targeted the officers and by cutting their days it didn't affect their salaries and to address what was questioned to mr stapleton they did look for other employment they applied as security they applied to no other agency is going to hire as a police officer but security may be at wal mart or target they did not get employment two of the officers were asked to stay on because of their duties as investigators level but right now my argument i primarily want to focus on the f oss a overtime issue and also will respond to some of what they raised today i want to focus on that overtime issue primarily because i feel like the to a seven and eight is that an employee that works over forty hours a week gets paid time and a half or every hour of the forty hours there is an exception to that that is available to an employer that employs law enforcement or fire department officials the two seven k exemption allows them to extend the number of hours of hard before overtime kicks in and there's all sorts of regulations on that on the the ratio having to be one hundred seventy one hours to the twenty eight work days to work days the burden of proof is also different on that as opposed to the fluctuating workweek under to a seven k the employer has the burden to prove that the exemption applies in this case in this case we have never claimed that to a seven k exemption applies we have not set a work period specific to the law enforcement officials of the district instead we have used the regulation twenty nine c f r seven seven eight point one one four which establishes the fluctuating workweek that is not an exception to to a seventy is simply a different method of calculating over time that is consistent with to a stop me so bottom line is we're not using you're claiming the two of seven k exemption and nothing acquires that we do but their expert parenting believes that because there's law enforcement personnel involved the two or seven k exemption has to apply in this instance they  how can an expert decide the legal issues in the case and i understand an exercise maybe calculate the money is a financial matter but it's for a court to decide if an exemption applies not not of an expert in the course of the expert on the one that's been our position on this as well fluctuating work week method does not apply in this case and therefore conditions that must be met for the fluctuating work with method to apply one is the hours that the employer works less fluctuate from week to week and that they're paid on a fixed salary regardless of the number of hours worked in those given weeks that is exactly what has happened in this case the third is that there are sorry cannot go below minimum wage and there must be a clear mutual methodology works is when they're getting a fixed salary for fluctuating work hours then the overtime is paid at half time instead of time and a half again is not an exception it's a different methodology the plan is to not prove that that is not applied instead their evidence that they submitted with their response and summary judgment actually proves that the fluctuating workweek conditions are met and in the record at fifteen twenty three the record three fifteen twenty seven there are payroll calculations sheets and the payroll records for the plaintiffs as well as the other officers in the department and what it shows and it's broken down in different columns that shows each week that they worked and each month there are three months represented in their july fifth through october it says that they received a fixed salary each week that never fluctuated and stayed the same that base salary and each week the next column shows the from their payroll record would show you would take a in a given week you would divide their base salary by the number of hours they actually worked that week that would be their regular rate of pay you divide that in half now that's their half time rate then that number is taken and multiplied by the number of hours worked over forty so we didn't extend the work period as you would in a to a seven k exemption we use the forty hour work week with a half time pay the evidence shows based on th paper records and how they were receiving their paychecks and how they were calculated that they understood how they were getting paid in the case law in this district as well as the first and fourth district simply requires that the employee understand that their hours vary and their fix our rate compensates for those hours worked it doesn't require that they understand the calculations doesn't require they understand the math behind it then even a part of the understand the legal part of it in terms of what it how the exemption and there deposition testimony excerpts that they submit who are summary judgment response there the officers acknowledge that they knew that they had a base salary that did nothing actually and that is on record record page thirteen twenty four thirteen twenty six and thirty nine five officer all of august and got to testify that they had a set salary that does not change all of them in those same deposition excerpts acknowledge that they were being paid to have time right and that their disagreement as opposed to fluctuating workweek which is a methodology not an exception and in the robinson versus webster county board of supervisors case out of your car mississippi interpret this provision for a law enforcement officer specifically the court notice that regardless of whether the plaintiff the satisfied with his overtime pay arrangement the important fact is is he is aware of how he is paid and that is exactly this case and the bottom line is they knew they had a si sick salary they knew they were going to have time overtime rate they knew their work hours fluctuated week to week and merely because they think time and a half should apply or that to a seven k exemption that we should have claimed that that doesn't change the fact that there was a mutual understanding that this is exactly what is applied in this particular case additionally the department of labor when they had done their audit we had submitted that as evidence that they had found that the audit was done correctly and they had looked at it so they have time paid was applied correctly and they did not present any conjuring evidence to that in the summary judgment record i want to briefly address what they raised today in their argument they raised on the retaliation claims their first amendment f s f l aside retaliation claimed these are sufficiency of the evidence arguments and they did not bring the entire transcript of the trial there's actually there's case law that says the court can't review that without the transcript the full transcript is not available they didn't that in order they tried to order it but they didn't explain to the court why the transcript was necessary when they were trying to get it at government expense and will will will take a look at the accusation in the briefing but would go ahead and assume that that's not the case but even assuming that's not the case and looking at what is actually in the record at this point efficient they have to prove that the non retaliator reasons the district gave were pretextual they did not controvert the fact that there are witnesses that all the evidence is in the record in the testimony their witnesses acknowledge they did not happen or so knowledge of how the budget was created how the budget was formed or the issues and the money that was received by the district subsequent to the cut in days that that was used to pay incentives and pay raises a year and a year and a half later so there's no evidence of day provided that controverts any of the non retired to reasons that the district gave on their free speech claim this one involved all three of the officers and going back to not having a transcript there's nothing in the record that shows those three officers what their speech was so there's nothing to review in the record to say what does what they testified does that constitute matter private concern or public concern and this instance even assuming looking at what we do have and the record from the summary judgment motions and responses their speech concerns an inherently private matter about their wages and throughout the process of grieving their wages and overtime issues they were done internally at the school district with the superintendent system superintendent and then a board meeting that was held in closed session until this is always been paid as corrective compensation is typically a quintessential matter private concern and that's exactly what this is in the situation they also make a note that a court restricted some of the evidence they could produce regarding retaliatory motives that ends it regardless of how the court would rule on that it's it would end up being harmless error because in this case the two officers that did try their first amendment claims the very first question the jury was asked was was there adverse employment action taken against these officers the jury answered no so you don't even get to the other questions of cause nation or whether there's a practice or policy of retaliation so what kind of evidence was regarding a practice in pattern is irrelevant this point because the jury didn't even get to those questions and concerning their claims about the expert report being part of the summary judgment evidence from the court reviews the record they'll say that the expert report that they're referring to was part of the record on their response to our mission to strike their expert or if it is not jury ruling was based on not having received the evidence of the reputation of the district from prior employees in the district people in the know or their opinion as to whether or not they were retaliatory whether or not there were corrupt opinions that were going to be given that works good we would heard are not resolved by the answer to that very question that they were impacted your questions and answers were impacted and of course sad does not solve the problem of the piece rate officers who did not get to submit that at all and so you know to say well no harm is there we're sort of in a position of did the school board said let's intimidate let's retaliate against police officers i know that that that has happened but i think it's going to be rare and in order to get there of the reputation and opinion testimony of other people who are familiar with it is about the only thing that we're going to be able to get to establish that and they were not allowed to present that evidence and it's going to impact  s answers and all the decisions all the way through as far as the issues of of the attachment of the report rule and so in order to seize on the say well you know times to one motion but not to another will it hurt is is not a willingness to look at the whole record and i understand that they are not required to comb the record of as far as the decision making i think i would submit to judge toggling never rich reach the issue of what is the proper over time sexes are still going to be available on that i would like to talk about that the lack of transcript on this we did of course make a choice not to s transcript there was it was a matter of resources it's got to be that case i think in a lot of cases similar to this we have to be funded  indigence and we've got some partial relief on that but not for additional transcripts of we asked for a continuance so the labor union could pay for it and were unsuccessful on that  and we would have well they did the court file and when we submitted it that they were police officers at us the school district court paid poorly and they're paid for a short amount of time and they have families and they just didn't have the resources really to to fund this and and so you know they did their best and and i think everybody did their best with the resources that we had it's within the rule that we permit submit a partial record and we were we were qualified and submitted on