* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

October 5, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-30494

Summary Calendar

 

GARY LEE,

Plaintiff-Appellant-Cross Appellee,

versus

CITY OF NEW ORLEANS,

Defendant-Appellee-Cross-Appellant,

-----------------------------------------------------------

KEITH DEBARBARIS; ET AL.,

Plaintiffs,

CLARENCE WETHERN; ANTHONY LANASA,

Plaintiffs-Appellants-Cross

Appellees,

v.

CITY OF NEW ORLEANS,

Defendant-Appellee-Cross Appellant,

--------------------

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:01-CV-1211-M

USDC No. 2:01-CV-2628-M

--------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Plaintiffs, Police Officers Gary Lee, Clarence Wethern, and

Anthony LaNasa, and Defendant, the City of New Orleans (“the
2

City”), appeal from the district court’s judgment awarding the

officers back pay on their Fair Labor Standards Act claim and

rejecting Lee’s retaliation claim. We affirm all rulings of the

district court.

The City contests the district court’s finding that the

officers were entitled to back pay, insisting that such finding was

not supported by the record. That finding, however, was supported

by the officers’ trial testimony. Given the deference we afford

the district court’s credibility determinations and the fact that

the testimony supports the ruling, the district court’s finding on

the matter is plausible and not clearly erroneous. See Barfield v.

Madison County, Mississippi, 212 F.3d 269, 271 (5th Cir. 2000);

Mireles v. Frio Foods, Inc., 899 F.2d 1407, 1413 (5th Cir. 1990).

The officers assert that the district court erroneously

admitted the hearsay testimony of Sgt. Mark Mulla. The officers

argue that they were prejudiced by this evidentiary ruling, because

the court relied heavily on Mulla’s testimony in reducing by onehalf their compensable time. The district court, however, based

the amount of compensation it awarded the officers on the December

2000 settlement reached between the New Orleans Police Department

and the City’s Civil Service Commission, which authorized one-half

hour per work day of compensable time for canine officers.

Consequently, even if we assume without granting that the district

court erroneously admitted Mulla’s testimony, that error was

harmless. See FED. R. CIV. P. 61; Cozzo v. Tangipahoa Parish
3

Council--President Gov’t, 279 F.3d 273, 292 (5th Cir. 2002). 

Finally, Lee argues that the district court erred in rejecting

his retaliation claim on the basis that he did not suffer an

adverse employment action. Lee did not establish, however, that

his transfer to the Tactical Unit resulted in the loss of

compensation, duties, or benefits. Standing alone, his subjective

belief that he was transferred to a less prestigious position is

insufficient to prove an adverse employment action. See Pegram v.

Honeywell, Inc., 361 F.3d 272, 283 (5th Cir. 2004). 

AFFIRMED.