whether reasonable juror could find them this last that was entitled to overtime compensation under the fair labor standards act now this issue goes to the very beginning at the motion dismiss stage the employer in this case filed a motion to dismiss on ninet they threw in title seven claim saying that and just that they are a state actor that they are covered by federal munity and that jet requires that we bring our case pursuant to ninety eight three relief which is as this court knowledge and bud's the exclusive remedy against state actors now our contention this case has been the same throughout we are contending that you are not yet a state actor until you first show us that the manners factors this court established and applied to miller apply to you now at the motion dismissed stage there was not sufficient record to determine whether the elements three and four weighted in their favor they assume the first two did they were wrong about that when this court decided miller instead actually the second factor weighs against you guys and so the community service board in that case was found not to be an arm the state and so in that sense they were a person as the decision from last year called edenfield decided and supreme miller said that there are a person under ninety three and so the where do we do sufficiently tangle the state with the entity now the ninth circuit if i may go to judge thomas a neighborhood and talk about this case of cabinets where an individual brought a case i guess a charter school and the arizona statute in that case also said because the statutory law says a public school and the attorney general consider them a public subdivision they must also be a state actor in that case the ninth circuit said no that's not enough for the state to being tangled with the entity you've got to do more to show that the state itself has given them to act on his behalf to weigh the state's hat as the manders analysis talks about but that is inherently state law directed conclusion is that there was we have to examine the georgia statute in order to figure out what these boards are how their crew who pays judgments that are against them who decides to hire and fire that sort of thing that's exactly right that's what the man is as does the statue or authority question the judge was and had had to go to the first matters factor which is how it is the state of georgia considers and under georgia state immunity law now the employer in this case cites the youngblood which is the georgia supreme court decision throughout their briefing and that decision and this court and miller and her pret youngblood to say that that is a matter of state muti and so it's fine that we get a presumption that they might be an arm of the state under georgia state immunity however you cannot extend georgia state immunity on to the federal act aren't there really two different questions or not you or a government entity or a state actor has to be asked and in unison and so that matters analysis considers whether or not you are a state actor for federal media purposes first beginning with how do the state of georgia consider these entities int are not off the hook at this point they have to show the other three factors manders which at the motion dismiss stage i'm so sure passant your argument is that in order to determine whether or not an entity is a state actor we are we have to look at the federal law and state law that's not correct and we apply our one of three tests the public function to the nexus joint action or the state compulsion for the federal law controls what you just mentioned is another option for the employer to say so if they can't prove that manners there's a presumption that a person underlies the eighty three and then they've got to show potentially that as a private entity they can become transformed into a state actor which is where those tests come in and so they could have potentially showed that although we can't prove manders we can still show that as a private entity we became a state actor in the way we conducted ourselves and the way that the state involve itself in our affairs and this and this case what we know from miller is that essentially these boards are at the very lowest point of the health service providing providers and what co leader called third tier health providers and because they're a third tier because there's agency under the state there's the original boards there's community service boards who are kind of the sub contracts being all of that they centrally have remove themselves from state control and not private actors they're called public corporations they are private actors the way they conduct themselves as a presumption they have the burden to prove that they're not and so there's actually beginning with it we began with the assumption that they are private actors we treated them like private actors all the way back to our complaint they told us that their state actors and we tell them they have to prove it through the manners analysis they refused to do so when miller decided that they in fact are not armed to the state and essentially what they did was they recycled the first manners analysis and said that jet requires you to bring it pursuant to eighty three and we don't have to prove to you that we are state actors but you would concede that notwithstanding your great argument here if we conclude as a matter of law that they are a state actor then the claim should have been filed under section one hundred eighty three in light of that's correct and i guess the only thing we can do in that point is see if there is some kind of waiver musea or of congressional act has moved to remove them from that but as far as winter stand if you rule that they are a state actor under the first manners analysis which is centrally how the georgia supreme court and the legislative authority can sort then seize them then they would be a state actor and then in the future we would have to file claims against eighty three and this also goes straight to the title seven issue these two aren't tangle together their claim for why the title seven issue should be dropped is because we can seek a right to sue letter from the tourney general which is required to sue governing eunice and were again contending that they are not a government unit and we don't need to get a letter to sue from the attorney general the e e o c is sufficient and regards to the fair labor standards act claim known as the retaliation is the first r abandonment has to do with the fact that we don't respond to jet now we responded to jet before this court tried to make it explicit that we don't need to response a jets claim that we have to bring this pursuant to ninety three because they have not proven that they are a state actor for which that provision is provided and so essentially we had to go around and say that jet and bus said that although state actors do have this federal muti opportunity they have not proven that they get to take advantage of it until they prove that they are in fact the this and they they see eighty's a supreme court decision has not been overruled but the district court found that that was an uncontested issue of material fact that that coupled with the testimony of the orientation plus her signature on the wa not create a definitive claim that she understood because she first sighed as a nonexempt employ suggesting to her that she was in fact owed over some compensation she was told and this is where to comes that she was told by a supervisor  and signature it talks about that this proportionate weight that employers have over their employees to sign away certain rights and this is the prime example of that situation though this is now a voluntariness or a lack of understanding arguments are out of that even though she signed the form she didn't really understand what she was signing she couldn't fully understand the gravity of what it meant to sign that form and respects to given away overtime compensation but it really is a question of whether or not you're a manager or a supervised hourly employee is that not that that's all and make an example employee mean exempt employee means a lot of things just element which is why goes into the measure of duties and it goes into the exact the bona fide exemption issue under the she testify that she didn't understand that she wasn't entitled to overtime and after she signed up for she she did not understand that she was a not exempt exempt employ and she could tend to ask for overtime compensation i'm not sure of the re statement from the very beginning that she believed she was not example could be that would be her subjective belief when you said the district court decided on what was objectively reasonable given the state of the record correct subjectively they agreed that she did have a complaints and regard to orientation just tell me that you mention that one station has no corroborating evidence that there was a discussion about whether she was exempt there's obviously no way to tell if she heard this information they mental impressions that aren't and there's obviously no way to  conduct what protected conduct if the law says she is not entitled to overtime then there is no protection for over time that just all of the protection is that she had a good day believe that she was owed that regardless that she was wrong about the law but the law doesn't protect her on a claim that she's owed over time when the law says she's not and i think that's that's a problem i'm having with your argument and i think eventually that would go towards the second issue where she was o and so then you would have to look back potentially at the retaliation claim and treat that as a extension of the fact that she was not owed over compensation but that i'm not aware that there's any any precedent out there that would establish that if you're not entitled to overtime wages can have a claim for retaliation if you complain about not getting overtime wages the way that morgan this judge wilson is essentially if you have a claim for sexual harassment for example and you are found to not  you still have a right to claim retaliation even though you're wrong about the act underlying act and so we're believing that f l a state you have served the right for in time compensation based on the fact that she was not exempt employee but again the retaliation claim we services to the members of four counties in northwest georgia could do such a two walker in dade county i have four points that like to make this morning the first is about plaintiff's abandonment and  of arguments below and that this court second lookout mountain status as a state agency third because it's a state agency under title seven there are certain conditions precedent and under nine hundred eighty  made an argument about title seven and the conditions precedent plaintiff did not respond to that argument and the district court found they had waived it now in the appeal at this court they didn't challenge that district that lookout mountain was not entitled to eleventh amendment immunity and that's a different question than whether lookout mountain is a state agency or georgia law the georgia legislature has been mentioned in the georgia supreme court have both unequivocally said that community service boards like lookout mountain our state agencies don't know we look at the federal law and not state law to determine whether or not a party is a state actor yes your honor but manners versus leave the factor set forth in manners vs lee look to whether it's an arm of the state for eleventh amendment purposes eleven of the men in immunity and this is a lower threshold whether and entity is a state agency and so i think a lot of deference should be given to the states because because it's not eleventh amendment immunity in play the same kinds of protections aren't offered to a state you're a state actor under nine hundred eighty three only if you meet one of those three tests the state compulsion to the public function to us or the next is joint action to us well community service board i think would pass possibly more than one of those tests the public function test and youngblood does georgia supreme court said that c s b s were created as public and entities are agencies to govern publicly funded programs which provide mental health mental retardation substance abuse and other disability services and that they were set up on a multi county level to provide continuity of care through integration of county area regional and state services for the disabled so there certainly is a government function and if you look at the statute that creates community service boards you'll see that there are they share the characteristics of out of state agencies employees and community service boards  to the state employee benefit plan including the state health benefit plan which is only available to state employees they fall under the state merit system for hiring in terminations and they fall under the state employee retirement plan property of community service boards is considered public property they're not subject to local advil or i'm used to acts of sales tax community service lords must abide by the rules and regulations set by the state for hiring so an applicant comes in a community service order wants a job community service board has like lookout mountain has to give that name to the state so they can do a background check so they can do a driver history if they're going to be using state vehicles and if there's a complaint made against a community service board it has to be sent to the state so the stay can decide whether another agency needs to investigate the community service order where there is something that can be handled internally and community service boards also can purchase insurance through the georgia department of the ministry of services which is only available to government entities to protect government entities and government employees from suit so community service board say or virtually all of the characteristics of other state agencies in georgia and i think a lot of deference should be given to state law and that's why the manders factors you know only the first one is really important here how state law defines the entity because we're not asking for a lemon that mean and it's not it's not a real shield against federal law it's only that certain procedures and certain conditions precedent are necessary to bring suit so the t itle seven says that when there's a state agency the plaintiff my seek a letter from the attorney general as a condition precedent su look out now in full plaintiff after they amended their complaint to add title seven lookout mountain told plaintiff you must get the letter from the attorney general at least make some attempt some cases call for equitable modification but only where some attempt even a small attempt has been made to get that letter from the attorney general and lookout mountain told them immediately after they amended their complaint to add title seven that they would need to get their right to sue letter from decision to do so and after they've lost their asking to their saying we're not a state agency i think the fact that miller the miller case even got here and this court was even looking at whether community service corps were arms of the state is a clear indication that they were at least the state agency at least  and i think today is the first time i've heard of this argument that she cites that there's an argument that she signed away her rights that's not the argument the argument is she was exempt and the evidence the undisputed evidence clearly shows she was employer force exempt status on a nonexempt employee kate employer force it now i think i think what has to happen is the court has to go through the factors for executive exemption and see if the plaintiffs actual duties ball under those examples where if we do all of that and we make a determination that she is nonexempt notwithstanding what she has also argued several times both below and here that lookout mountain but what it what if she is an exempt employee but she still complains about overtime wages and she's fired as a result of complaining why can't she still bring a f l say retaliation class so courts that have looked at this question and i think the majority of courts in the eleventh circuit and i cite a series of those cases and in a pelleas brief of pages forty six and forty seven or in this circuit courts that have looked at it have said an employee cannot have an objective good faith belief that her complaint is valid if she's actually an exempt employee and it's presume sort of a legal fiction is presumed that the employee knows what the law is and correctly applies the law when she makes the complaint and only when in the matter at all i think the court needs a look at her actual duties i don't think the form has a lot to do with anything to be honest it only shows that the plaintiff has claimed over and over i didn't know i was exempt or the form so as she didn't know she was exempt that's really all that evidence shows it's her actually duties that need to be looked at whether she was actually an exempt employee i thought it was also i'm sorry go back to judge wilson's previous question there's case law that says that employee cannot be retaliated against if she protests an employment practices even though it's actually lawful are you saying there's a special rule for f l as a cases regarding exempt or non exempt status district court found is and does that authority consider the case law that says what i just said in other words is it resolved in the case law in any way in f l it's a cases these are all district court cases i think the essay is different from a lot of other employment law where it makes more sense it makes a lot of sense to require the employee to actually be exempt for the complain to be a protected activity if not you would have a lot of litigation and it's a judicial economy thing as much as it just sort of a common sense thing if there's no underlying wrong where she's not misclassified then the complaint is not a protected activity i think i thought there were some statutory provisions such as the salary that she was paid on a weekly basis that we also look at plus the number of employees that she supervised that's absolutely right and that's what i meant those are the factors that the court should look at to decide if she was an exempt employee there and what and those are factors that are set out in federal law under the fair labor standards act are they not honor there's four factors whether the employee was paid the threshold salary and that's undisputed in this case whether her primary value was as a manager and there's just voluminous evidence of this in the record  whether she customarily and regularly directed the work of two or more employees i think that's undisputed in this case to and forth whether her suggestions as to hiring and firing were given a particular weight and the record shows  that everyone that she recommended for hiring was either hired or they attempted to hire in fact one inflation recommend it shouldn't be hired because she didn't have enough experience and lookout mountain hired  to work at a different house where she would be supervised by experience personnel so they really follow what they really thought her recommendations each time and that there's an e mail at ten fifty seven for exhibit volume two of a pelleas appendix where she says to her the director of a cover services i interviewed an applicant i'm not sure if this happened or will work out and the director of recovery services writes back you're probably right you might be right but it's your decision if you want to hire or not so it's so plain if her suggestions as to hiring or firing it's undisputed today were given particular weight and if she satisfies the factors for an exempt executive employee could you address the question that i asked opposing counsel with regard to the statutory factors you have been in that question yes don't we look to federal law under the f l s a and examine those four factors in order to determine from an objective standpoint yes or whether your client is example or not and that's correct and the fact of themselves so if we look at that there's two and three and it gets there with the lower court did in this case we show there has been a complete abuse of discretion in regards to how close duty and it has to be a fact intensive inquiry just at the state act a question of fact intensive inquiry that cannot be reduced to that issue disputing that that she directed the activities of two or more coworkers at this private home for and this is the reason why this is a problem because it morgan they actually family dollar actually offered payroll slips and affidavits easily digestible affidavits to show that these managers rushed overseeing these employees and this case the lower court essentially just said no recess until nine o'clock tomorrow morning o