had the power to either grant al worse we're not paying them at all so it is moot he would not be working at that school were possibly not at all unless he gave her hours so there's no greater power th so therefore it had to be a total employment is correct does that mean that anybody who controls the schedule for a work force would be a supervisor yes if you have the power to schedule a person but well i know what you're referring to your idea that you're referring to maybe a dispatcher or something or a schedule work we're talking about this person no rotation set up by the school district so the only way that this movie could get any hours was to go around and talk to all the individual supervisors basically a good job interview and she have ten supervisors now of these people a supervisor if they can withhold hours or hours your honor the supervisor is the person that is going to actually give you the hour she wasn't going to read or let me give you hate let me give you a decision causing a significant change benefit right so that's where we get it from the ability to make a significant change in benefits is a scene reasoning not really what vance is all about that someone has been and powered to impact the employee in this way and if they say you know justice alito says supervisory status can usually be readily determined generally by written documentation you've got the power to hire fire this person or you're going to dock their pay significant change in benefits it's not really fit with the fact you're saying are ten or eleven supervisors here the supreme court never limited to hiring and firing which that was the basis of the lower court decision but isn't this tantamount to hiring and firing when you're the one giving the hours you're you're the one conducting an interview and saying ok now i'm going to start giving the hours you know honor and then you're the person that's actually giving the hours so you're in a sense that the actual hiring that occurred was ok she she's available to be a substitute but she's not going to get any work until she's until she interviews with tears for a minute and you know somebody at the board told her if you want to get ours you got to go to the want for work foreman is that right correct so is it your position then that the board for an because they controlled who got assigned hours and hence resulted in pay were who didn't get site assigned hours and then got no pass is the nature of the benefits that dance was enough for a change yes and and in texas your daughter would you mention the administration itself was acknowledging that hey you got to go over to the foreman and get the hours we're not going to do anything for you is there anything in the record that identifies someone and fire right he had no role in scheduling but are you saying if i'm an attorney and a law firm patton you know there are four different people who are giving me work are going to enable me to have you know two thousand hours or maybe one thousand hours of an impact you know my review and how i do these are all my supervisors in a sense yes your honor you have to look at the specific fact pallor that mr marshall had he was able to we better way on the news that to to get his way now this that that has to do with a there is a quid pro quo claim obviously but when we we went with the hostile work environment claim and the the what the quid pro quo was so outrageous that we felt that added to the hostile work environment obviously when you offer a personal them hours in exchange for sexual favors that is harassment and creates a hostile work environment i don't really of each of those claims because my colleagues obviously are right there are certain issues of course these with regard to each claim that we would get into great well i there the the respondent their argument was let's just assume this person isn't even a supervisor and and talk about all these old cases where you are treating this seem to nap on our one is if i do maybe which other courts have completed preserve a piece of it and the other is that they get a reasonable cost is so are you sure it wasn't preserved i'm thinking it wasn't prejudice well i i not well let's assume bed where you're saying is correct your honor then and then i'm going to withdraw that notion i just wanted to let you know that i don't see any aff hours you've got to go see the study of florida right yes that's in the record judge and i believe that she testified that's exactly what she did she went through each of the schools there were eleven school schools and the atlantic city schools were strict at the time so when somebody and a half hour into this case and actually the deadline for decides that motions had already been come and gone there was some last ditch effort i believe it was a judge snyder who extended the deadline for dispositive motions  research to do and what cases to cite obviously we start with the complaint in the complaint it wasn't clear what theory of sexual harassment of title seven plaintiff was even claiming but either  called in by marshall that day and marshall was the foreman at the school in charge of all of the custodians i think that it's reasonable that during that day he could be considered in a supervisory position however was he a supervisor her supervisor there no i think it would have been the principal and i think that it would have been reckless as that cracked we have nothing in the record that would educate us as to who supervisor is if it wasn't mr marshall actually mr marshall testified during his deposition that he doesn't have the power to hire or fire he doesn't have the power to promote and he testified that it would be in terms of contracts where  all of them yes each of them and it could be if marshall cut way down on her hours she goes to her story and at x y z school or y school and says listen i've done a really great job for not agree that marshall had the ability to take a tangible employment action on week because there were ten other foreman ten other schools that she could work at and i think that l points out if if the tangible employment action is substantial enough to that the employer would ultimately be put on notice that this is going on that's what that's my point i don't think the hours that mom works giving out hours in your a view is not a significant change in benefits not in this case ok what is a significant change the office has just to is a significant change and i think that if you have a full time position or contract or a part time position or some kind of articulated job title or some kind of expectation that was has been laid out by your employer and something with what has been laid out for you that this is your job changes then i think that's a tangible employment action well that's the payroll records just in this case if we look at the amount of our she had in  whether we do three pay periods or three months before she rebuffs is overtures and we look at for afterwards there is a massive reduction in time so on a summary judgment record that that is a reasonable thing for a juror to have concluded there was a tangible economic action taken towards this person so on summary judgment record if you want to talk about this case i don't care and you saying that it doesn't reflect a significant change in benefits when you go from you know three hundred plus hours to seventy hours or whatever the persuasive numbers are well your honor i've gone through all of the payroll records obviously and i see that after she read her report well after she the issue that one of the benefits to which she is entitled i think that's a fair question the benefit to which she is entitled she's not promised a forty hour work week she's not i mean i think that's the starting point what is the benefit which is in total really isn't a benefit to which she's entitled to if she's making five dollars an hour and someone reduces her to two dollars an hour this is never can change in better fix the benefit promised is five dollars an hour here the change in benefit granted is a decrease in work but can you say there is an actual change in benefits when there's really no benefit starting point i think that's the point i tried to make in greece and what were alluding to is that there was she even acknowledged when she testified that she never she was told to stay was never going to be a guarantee when mr marshall was deposed he testified that he recalled it was a list that was a pool of people and some people would accept for that day some people wouldn't be even testified for the first two years she didn't accept any of the employment assignments because of if there were an issue of fact and then the next question would be if tangible unplanned action and was not available to your client if there is no tangible employment action then the are with actors who applies it to i don't we don't we haven't defense that's available to to the board as the employer it they had sexual harassment policies in place that's part of the record the second prong is the employer  question of whether we're asking and we're looking at these charts these hours charts and it's tough to figure out was there a tangible plan in action what are we looking at today apples and oranges of whether she got more work or less work and what are we look payroll records that were set forth based on the time sheets that were set forth if you and based on the deposition testimony of her understanding of what you have benefits were that she was entitled to that there was no tangible employment action and i employed as a substitute and there are many employees throughout the country that are part time they don't have definite hours and just like any employee will employer can give or not give hours if you if you are hired to work forty hours a week your expectations work forty hours a week if you're hired to get as much substitute work as possible that's your expectation it's that's part of the contract that's part of somebody's using isn't a contract but there wasn't a he said what tangible employment action well can we need it up to the jury decide whether or not to spend well then actually that's the the issue that's why some retention maybe shouldn't be granted because there is a genuine issue exactly your honor we