and i believe that there is really no question as to what the law is on that fact and that is that any argument raised in a reply brief and summary judgment cannot be grounds for dismissing the case on summary judgment and it's a simply a matter of basic included arguments concerning actual construction knowledge that the hours worked and that had to do with the fact that they said hey you know mr mellon the certified the amount of hours he worked and so you know he should be allowed to claim anything beyond what he sort of fide that comes around to that caseload concerning actual start the knowledge about the hours they work the plane if i was he put on evidence showing that the employer had constructive if not actual knowledge of the hours of the work and so s my apologies roberts versus advocate healthcare that case was distinguishable because in that case the employer actually show that their dispute resolution process had been utilized by numerous  hours that were being claimed by the employees were actually given to the employer so dispute resolution process that actually functions and works on behalf of the employees if it's not utilized by the employees in the northern district of illinois judge opinion deserves credit here there was no evidence that typical new counties dispute resolution process ever been utilized by any employees to actually get time that they had been worked and not pay corrected so that makes mean i gave a string cite to both sides for a min and used the same string cite in my briefs and you know before this court saying that it's simply not allow actually twenty minutes each day he's claiming that he was coming in between a half an hour and forty five minutes early each day and that he was working through his one hour lunch break well in that way i understood there was he was treated twenty to twenty minutes each day and that's why even that and the court point of that even adds up to this forty hour correct right at the court also ignore the fact that there was evidence in the record in the form of there's twenty nine weeks in here that show over forty hours work and it's based upon not only coming in early but also working through lunch hours ok to begin some kind of a course we had to explain why that was at the very very very tail end of his employment i think the last we can after two weeks in question and that led to his term a nation and that was the subject of going all the way up to his supreme court on an unemployment benefits claim with the loss yes yes  there is a you know as a public in a d that they don't paint advance like regular private employers do and quite frankly i have been vilified in any law that says that they're wrong and so we've kind of left that question open to the court relied upon an argument that was first articulated in the reply brief secondly as a matter of fact in the record that was before it was for him and because defendant typically the county had actually forty hours a week you're saying that they had designated absolutely it was in the record it doesn't as part of their initial questions they had designated it or it was in the record they had designated as an exhibit to their initial summary judgment spread sheet was inadmissible and we pointed out that that was never raised below well they say the initial motion for summary judgment put mr milne on notice that the number of hours worked and whether he had been paid for those r s were at issue think i completely disagree you point to the sentence in their summary judgment briefing that says that and this will be the first time that i've ever seen that sense they made other arguments there but yeah they made arguments that they made arguments that he had certified  time and so he's not allowed to go beyond anything he certified i e an actual construction knowledge argument they made arguments that they had a they had a dispute resolution process they did not argue that he could not prove that he worked forty or more hours that they would have argued that we would have made a response to the argument but it's simply not there but that and that there was also not a response and they can imagine a circumstance in which they argue that he's certified his time and so he can't go beyond that and a response might be certified smart find look we've got evidence that he went beyond that and that didn't happen either right where we argued that they thought that there was actually a certain knowledge of  screen work and so that defeated the whole certified argument that they mean there was you know you don't if somebody doesn't make an argument you don't respond to you know and quite frankly i had no reason to anticipate that they were going to argue that when it was already in the in  tori's that he had worked over forty hours a week and that he had been deposed and that had been discussed about his split she had been discussed in this deposition so you know ruhleben says you're not supposed to make arguments or you know there's a material are they say that was accurate that they say it was accurate yet no but i mean was that any admission that with accu there was something you submitted or a right but that obviously raises a question material facts to play to says one thing of course they're going to say another that's why we're in litigation and you're not supposed to raise arguments on a certain judgment where there's a knowing question a material fact and that was already presented in his in our tours and discussed areas up position so i would have  reason to believe that an argument that there's a knowing question of original facts is going to raise and you know i'm not going to search for an argument i don't use a crystal ball to figure out what is being argued on summary judgment i responded argue it's presented take you his burden of providing specific evidence of unpaid overtime under the andersen vs mt clemens case where an employee challenge his records he has to establish the existence of uncompensated overtime and that means time in excess of forty hours as a matter of just in reasonable inference and we mention anderson vs clemens case i should mention that the supreme court last week decided the case tyson foods doesn't really change the analysis in this case but it does discuss the andersen case and so i think the standards set forth in andersen is still a good rule of law and just wanted to let the court know about that case that came through but if mr mellon shows that the count notice that this was an issue in this case it's not unfair with what we briefed in the initial motion to expect him to reply with evidence that sustains a finding and if he actually had overtime hours it issue first of all it's a wages in our case this is f l i say he say and i worked over forty hours which i was not compensated we argued international brief we were entitled to rely on the records we argue his hours were not properly supported so that's why we cited the spreadsheet he did not cite the spreadsheet in support of a proposition that he worked the hours or that the spreadsheet was reliable anyway the reason we cited it was to compare it against our records and show that it couldn't be tracked there's times for part of the time he was there that was the punch card system that they were implementing that was not the official record of their time that they would come in they would punch in and punch out and had notes that the employee could make and so we took that and we showed that he punched in at eight o'clock there were some occasions when he punched in at eight o'clock  punched out at four thirty to claim the whole eight half hours for the day put lunches a note on this electronic record got paid for the a half hours on his official time sheet but then if you go and look at his spreadsheet that he cited now he's claiming nine and a half hours with no explanation and there's some cases or at least there's one case in the golden case where there's an unknown there's a spreadsheet that case  explained this is a district court case are you not bound by it let's put the court in that case said that took a look at the spread sheet and the plaintiffs had not provided any details or justification and they said this doesn't meet the andersen standard you don't you haven't proved your damages by a just and reasonable inference so as a general rule mr martin claimed that he came in early any work through lunch as he says he needed twenty minutes to get equipment ready for his crew on field days and he claims to have worked through most or all of his launches but like i said he never provided the degree of specificity necessary to carry that burden you look at this court's case of brown versus family dollar that was one where the court looked at it and said summary judgment was not appropriate because even though there weren't meticulous records of the plaintiffs it could be reconstructed there was enough detail because in that case you had one employee who was the only one who could open and close the store you knew when the store was open and closed you had testimony about duties you know and how long those duties took to open and close and evidence that the time sheets in question could not have captured those opening and closing times so that that was enough evidence to provide the detail the andersen requires this case is more like turning the saloon in which this court also decided that case turner it asserted that his employer directed him to alter his time records to make him eligible for overtime pay and he said he was denied quote a substantial amount of money and he said he had information over time but he didn't place it in the record but his assertions were contradicted by records tending to show that he was either paid overtime or had hours below the threshold in that case the seventh circuit decided that there was not there really was anything but his assertion and that was insufficient to meet that just and reasonable standard of five anderson versus not clemens was also the district court cases we cited in our brief golden brandon joiner and they use  calculations like maybe once or twice a month the pi was lucky i got payer got to take a lunch i worked probably three years of lunches over four years estimates like seventy to seventy five percent of the time which was interrupted and those are the sorts of thank you but that's the sort of estimate that was in permissible in those cases and if you look at that spread she it says on the spreadsheet plaintiff's states that he would arrive at work between cases so even if the district court had made in the state by not looking at the spreadsheet i think when you look at the spreadsheet you find that it doesn't have the sort of level of evidence required to make an  plan but i don't think the district court was required this look at that spreadsheet he didn't designate it before the district court obligated to look at a part of his assertion the parties required to designate the evidence under the packer versus i you case decided last year that assertion has to be in conjunction with a cogent argument about why the assertions material so you don't have that from the plaintiffs in our designation of it as i said was to point out that it was flawed and couldn't be relied on and the reason we were pointing that out was to fully inform the district court of what their assertions were we tried to do that by saying ok he's got the spreadsheet is saying these things about his hours but they just don't hold up and so i think it was incumbent on him under the andersen case to come back and say yes we're challenging their record so they can't rely on it and here's my overtime cases was there some rule you can't work your lunch hour or something but there were the specific problem that got him fired was that he wanted to take some classes and so in may of the year and it's been so many years i'm sort of blanking on what it was he sent his supervisor in e mail saying hey can i take these classes i work early or  early and work through lunch to make up the time i missed from the classes and his supervisor said it's fine if you take the classes but you can't work through lunch or come in early the elected official the surveyor has traditionally found that that's tough to track and we can't we don't want to pay based on that so i don't want you doing that and so then a couple months later when he took the classes he despite the instructions went ahead and worked through lunch and came in early i think if you look at his records he had he had to work through someone choose or at least he claimed the lunches and he was paid for it and so that wasn't the basis of his termination s he was actually the he was yet he was i mean if you look at what we've cited those i think it's probably page twenty twenty one of our initial motion for summary judgment that said lunch so i think the inference is that you know you worked through lunch he got paid i think if you ask the surveyor at the time well sorry passed away but i think the surveyor at the time the policy would have been that no we don't want people working through lunches but i'm not sure how consistently that was in force thing that got him in trouble was just the specific exchange with his supervisor and may where he said now don't make up time for these classes they went ahead and did that an