in our final case of the morning is sloan against the american brain tumor and sort of mr mann good morning your honor counsel may it please the court there's only a couple of pieces in this case and they happen very close together but let's stitch them together i've decided on a six day suspension without pay i don't even think that you can do this my understanding is it's against federal law i would like an investigation in a a reasonable employer understood that she was making a complaint about the unpaid nature of her suspension about the employer illegally docking for what would makes docking the pay illegal your brief says several times well there are regulations about this it doesn't quote those regulations and it doesn't provide an argument about what's your legal so what makes the  ok the final four six zero two was the c f r that we referenced under section a of that of that c f r it says exempt employees must be paid for the entire week those on the salary basis must be paid for the entire week if they work any part of that week meaning that you cannot suspend them for a day and that's really in there about defining exempt first does not exempt employees it doesn't give exempt pay and hours and wages because those are the things that the for labor standards act for text here my problem is when i'm thinking about whether this complaint provided notice that she was asserting rights under this act is it seems a stretch to think that they were right she had to assert so it's hard to see how the employer could have been on notice but that's because well it comes it kind of the water falls down what happens is then they would lose the exemption under six so to be worth the exceptions to that will come into play to darkness salary for less than a full full week ostensibly then if they had done that the plaintiff could make a complaint that they had treated her as a  nonexempt employee and thus the defendant lost the exemption and could bring an action and in that matter again under steppers i looked in your brief for an argument that if this act cost the defendant the exemption there would then the a violation of the statute i didn't see any argument want why would you if you lose an exemption that's not the same thing as violating the fair labor standards where is the violation of the fair labor standards or well where's the arguably two things one is certainly would have a cause of action if the exemption is lost then the plaintiff could be part of a cause of action to recover the damages that if there were a violation but i don't even see an argument in your briefs in fact i don't even see an assertion in your brief that if the exemption is that's and in order to have a non frivolous claim you have to have at least a theory of something paul vi iraq was famous for saying that particular theories weren't even wrong all right this was in physics they were so bad they weren't even wrong that what i was looking for in your brief was an argument that it least could be wrong but non frivolous i didn't find an argument the exemption was maust the fair labor standards act was violated because then it would have owed her additional sums of money how do you know that because she was an exempt salaried employee  she was treated on a salary basis if they lose the exemption then they would have had to go back and look at there was no argument that it violated that regulation i'm certain did they have a written policy regarding discipline and suspension without pay that is the regulation says that there's a written policy even exempt employees can be suspended without pay pushes i don't know we haven't had discovered we haven't figured out that the two parts of that regulation that your honor cites there the one is that it has to be exercised in good faith for a rule violation that is written that's just reports opinion said that i did but i did not concede that what we had done in the briefing the district court was to make the alternative argument that says even if it were not the legal to do that then she still has a cause of action because of this under related and it was an argument about good faith that you have a good faith reason to believe that this was a violation of federal law and what we explained was that in under illinois law it certainly this used to be the standard under f l say before the change of regs in two thousand and four illinois kept those regulations back in two thousand and three refused to make that change so she had a good faith belief we were demonstrating a great you've been that you've got her income and you know what the minimum wage is under the fair labor standards act so if you work it out how many hours a week did she have to work before her net before her gross pay before tax fell under the fair labor standards act requirement as i stand here i don't know the answer to that you don't need discovery for that that's your own client outside information sure and all you have to do is do long division but it's long division and semi problem well i respectfully judge and you told me as they were separate but i'm going to go there again staff were seen in that case there was no f l it's a violation because the employer there was not an employer under the f l a say so there was actually no you have violated i have a non frivolous theory of violation and i keep saying i can't see any theory for violating the non frivolous or even a violation from the employee's standpoint might very well be under fire under section two i'm not looking for very well be looking for a theory you're not sure the regulation says that the salaried employees must be paid for the full week ok for any part of that we can which they work in this case there was a six day unpaid suspension meaning that she would have lost income been docked pay in yes she wasn't working that we can she was not under the suspension not supposed to be working the six day into the following week that is a week in which she would have worked four days and she would have still been docked and received less than her full amount the pay which would have been the violation of five forty one six zero to a reasonable non frivolous violation of that argument with that i was or the balance of my time thank you m the first is her oral statements i don't even know if you can do this and we had a lot of argument already we didn't really focus on the context of those words so she makes a statement after she was suspended six days without pay that much is clear that's the only thing that's clear the statement was made a day after a meeting the meeting was held to discuss management training and a staff retreat there was nothing about the meeting the related to anything in the f l s a there was an argument that took place at the meeting the argument had nothing to do with anything relating to the f l s a the statement i don't even know if you can do this those words by themselves don't tell you anything really every case cited by the plaintiff from kasten before cast an after casting where the complaint was the action had to do with the dispute had something to do with the f l that's not so here not so here the statement can be plausibly read to simply mean that i challenge your right to impose discipline it could mean could mean what he wants it to mean but it's very at the yes so when she she mails the board and says you know this man are saying this is against federal law her lawyer sends a letter saying you know she has legal claims you know she wrote us yesterday what legal claims might you have been on  what law she might be talking about because she's never said anything about our worst she's never said anything about wages honestly i don't know and you know what even in the water the letter doesn't even refer to the oral statement right only refers to the e mail so that seems to have dropped away and the letter just talks about the suspension without talking about any law about any wage about any  for this unpaid suspension of an exempt employee with a regulation say it was not supposed to be docked pay well i mean our position would be that we didn't certainly we didn't of the number of hours worked and whether they are in the face forty or over time there could be an argument that there was a record keeping violation you have to pay a certain amount it's there could be an argument about that if she's not ex last paragraph it's interesting he makes the observation in reference to the letter there are no actual complaints about discipline or lost wages the letter does not claim the suspension without pay was unlawful under the false a problem because both plaintiff and defendant agree that it was not we didn't brief something that neither party was really disputing we were focused on three statements one there was oral a second there was an e mail and a third there was a five page letter and did a five page letter nothing was ever said about we're making a claim you're asking about claims the only claim they were specifically identified was a potential claim for man exempt employees you're talking about punching in and punching out in clots and here it was clear she was talking about the n p t suspension she was talking about the discipline and it's less clear that that triggers the f l a say simply because exempt employees don't the same protections under the fair labor standards act that not exempt please do but she was talking about the unpaid suspension it's the question in my mind is how that ties into the fair labor standards act again your hon based on what was argued and not based on what was planned there is also of course a good faith objective belief requirement that we made even if there was a sufficient detail  fully agree with you on that unfortunately this is simply an instance where you have a workplace dispute the became personal and there is nothing about what was identified what was alleged what was said that would give us fair notice right and she challenging the basis for this personality conflict that has not risen and she's challenging elizabeth wilson's leadership and she's challenging the vitality of the organization as she continues to lead the organization and reaffirming her belief in the mission it's all about the substantive reason for the suspension not the fact that it was unpaid your honor i agree with everything you're saying you know so there's no flag that this is a wages and hours violation an allegation exactly and you know even if there were a legal basis for it right i mean i mean look if she was going to look at everything was within her knowledge and control she got to say whatever she wanted to say about what the discipline was and if she could have played it she had every opportunity to flee that it was within her knowledge and control and by failing to do so she played thank you oh oh respectfully judge sykes that there is no reference to the unpaid nature of the suspension defendants only get to that position if the ignore th kasten teaches us clearly the context matters in context matters in turn that was the point of the line of questioning that i just post your opponent which is that read in context this is not a complaint about the unpaid nature of the suspension things if i'm on page nature that this is a way just an hour's complaint if i may that isn't that is a construction made in isolation rather than context it ignores the discipline that happened the day before this is an email sent at five o'clock in the morning it says i want to make you aware of the discipline that was threatened against me yesterday references the discipline defendant is not a stranger to this it's not a pollyanna in the woods this is the discipline to get in shows this is the conversation it started with her when she references the discipline in that email it must refer to something and it refers to the unpaid suspension and secondly if i may judge you're right it may be that maybe one plausible construction but at this stage of the pleadings her allegations are to be credited under separate being under cast and both in this court of the supreme court she makes an allegation paragraph thirty three of the complaint that she contested the unpaid nature of the disciplinary action against her and that it was a violation of federal law those are the allegations that need to be credited on this complaint at this stage of the proceedings counsel conceded that this fact he said it may mean what he wants it to mean referring to myself it may mean what the plaintiff wants that's right in at the two six fifth susan it will be six days we're entitled to have the allegations credited we do not have discovered about what she did that it was