manager and alleged harasser in this case was not a supervisor under title seven and the supreme court's decision in vance vs ball state university that decision was incorrect for the principal reason that autozone conferred upon townsell the ability to make hiring decisions on behalf of the company he could hire hourly store employees at the store in question and the victims of his harassment were hourly store employees the purpose of the vance decision was to create a sharp dividing line between coworkers on the one hand and supervisors on the other and the defining characteristic of a supervisor after vance is the ability to take tangible employment action putting  mr towns a little some point acquired the ability to hire he didn't hire these pine and i'm hard pressed to find anything he could do with respect to their employment other than ma recommendation of the latter so what else could he do it was a mistake we fathom apparently there's somebody else who's involved in a range in the schedules for the the store i  mean what's going on with the second factual premise i disagree with mr townson was primarily responsible for setting the schedules but more to the point your question the most realistic most pressing concern is that council was empowered to evaluate these employees and there's evidence on the record that those evaluations translated into pay increases which had economic consequences for these women which added to the level of the threatening character of his harassment under and where do where do we supervisor on that form and there is testimony from both willett and smith that they received pay increases in conjunction with each of our you ation and so that is obviously it wasn't a direct he didn't have the direct authority to give the raises but autism relied on his evaluations to give pay increases and justice alito is opinion makes clear that to be a supervisor one need not have final decision making authority if the recommendations are documented you referred to is part of the record so there's a document which is an evaluation of robin mchugh and that was created by by braced counsel that's a page id's six thirty six of the right you have a piece of paper showing him signing that you wider for one employee ry and his testimony that he could evaluate employees and discipline employees and there's testimony from smith and willett th evaluations led to pay increases so from that a jury could find that he had the sufficient authority to be a supervisor hundred vance and that's separate and independent added i thought he could recommend discipline that it could impose discipline he could write someone up which then would be trained as i recommendation correct but there's another important fact that justice alito talked about in the second part of his majority opinion that if the enterprise is set up in such a way that there employer confines final decision making authority to offsite managers then the person who has the daily interaction and the most first hand experience and on whose recommendation the company will necessarily have to rely in that circumstance the company should be deemed to have effectively delegated supervisory status to the person on whose recommendation it relies and that is precisely that it happened here  district court did not think that it happened here the dish the district court found that the store that the district manager was not obligated to follow the store managers recommendation and of course there's nothing that formally required the district manager to follow the store managers recommendation but the question is a practical one and if you look at the structure of the enterprise there's no way the district manager who had little if any interaction with the store employees could take a tangible employment action against those employees without getting the input from bryce councillor who was the manager on duty i think another way of thinking about this is if the district court's decision is correct that would mean there is no supervisor on duty at autozone stores within this dress district and probably nationwide and that is precisely the scenario that justice alito was trying to address in the latter part of his majority opinion when saying that if a company confines final decision making authority to off site managers then it cannot avoid vicarious liability for the of its on site managers on whose recommendation it necessarily has to rely before taking tangible employment actions and that is the precise situation we have in this case if this if this case doesn't fall into that hypothetical that justice alito set forth i don't know what case would so townsell had the ability to hire store employees his victims were store employees if for example one of them quit at some point during their tenure under townsell and then sought to reapply he would have been the one make the hiring decision he had hiring authority over his victims he happened not to be present at the time and that the hiring decision was made but there nothing in advance that says vicarious liability should turn on just happenstance and timing it's about the you had gotten it read it same with updates if you like that part looks pretty good it seems like the if there's a harder part for summary judgment purposes is the second part in terms of the promise in implementing the policy so what your take there ok so in the context of the affirmative defense it's autozone burden and summary judgment to show through undisputed evidence that you took reasonable steps to prevent all that stuff ok so the evidence that undermines the notion that it took reasonable steps to prevent harassment is evidence that autism managers were affirmatively encouraging employees to simply click ignalina without making sure they even read the policies or understood them there's testimony that the claimants here did not receive handbooks there's no evidence about the level of training anyone got if you look at the conduct of the actors in this case it is plain that they didn't know how to respond to harassment that for example smith goes to her coworker chad berry and says she grabbed my crotch and said he wanted to have sex with me what should i do he said i don't know you shouldn't let a man touch you like that robin mckeown is upset about harassment that she's exposed to and this myth is exposed to she goes to her former boss who doesn't even work there anymore and says how do i deal with an issue she had worked there for two years you might slow down a little bit american help me in terms of processing it might help you in terms of listening what i was trying to say was it seemed to me they do a pretty good job on step one of the from a defense because i'm a little skeptical of the idea of it the company has to make sure someone reads it and understands it and can remember it two years later i feel like what they're doing honors the concept of the affirmative defense they have the policy then they make sure people acknowledge getting it you know where it is i feel like that's enough if something happens you should know to go to the computer and find out what's going on so i'm highly skeptical of your position on step one you chose to challenge me on that which is fine i'm on more unsure about step two that was my late september of two thousand and twelve autozone was on notice as a matter of law under this course decision and clarke versus u p s there was an ensuing five or six week period when september again which are smith reported to chad barrie that that grabbed her crotch and said he wanted to have sex with her he asked her what she asked him what she should do he said i don't know he was all the data to take that up the chain and failed to do so there was a suing five or six week period in which the her act excuse me the harassment continue and escalated and it was there's another important period in mid october of two thousand and twelve which is when smith went to ira graham who is the district manager he was telling his direct supervisor he was plainly in a position to put a stop to the harassment he was counseled direct supervisor and he said to smith after she said that he had been sexually harassing her we have to do something about that so what does he do about it he waits ten days to two weeks what do we do about her deposition where at one point she says it's october thirty first another point she says a week or two earlier but the only time she specific is when she says october thirty first well everything else is highly vague so i'm not sure any is evidence that she wrote a letter to dean or in early november when she said i complained to ira in the week between october october fourteenth and twentieth it's true that her deposition she was sort of induced by counsel the question in the deposition was and the first time you complain i see my time is up and it just yes but that is in contradiction to what she had said at the time in the contemporaneous letter to dean or so considering the evidence in the light most favorable to the e e o c we have to go by the timeline which even the district court adopted that the complaint happened in mid october not late october and in any event if i could just add one more point what graham did was to convey to dinner that bryce is saying stuff in the store which dinner testified she didn't even understand to me a complaint of sexual harassment and the only reason dean or took any action is they the report in there was and because her testimony the deposition was october thirty first and that is true and on the individual that actually elicited that testimony but if you also look at the statement that ms smith gave to ms dean or during the investigation which was very close in time to the alleged harassment and that is at the appendix fifty dash nine page id seven zero nine she was asked very specifically by melody dinner tell me please tell me who you reported the comments  touching to and when and her response was quote i reported the comments and touching to ira on october thirty first two thousand and seventeen so that when i missed school its own testimony to his dinner now there are three grounds on which this court  small no your honor because the the holding in vance was it was very clear and with the holding was was that an employee is a supervisor under title seven only if he or she was empowered by the employer to take a tangible employment action against the victim and so on your hypothetical it would not change our analysis of the situation advance also talks about hiring as one of the addition of being a supervisor or supposed to a coworker correct but in the in the analysis is you the whole thing about sexual harassment was power problems and if you hired somebody you're bound to have some power over them and that's that's the risk it wouldn't change our analysis your honor unless he actually premised the hiring decision upon that is that in the supervisor can take against the victim mr townsell could not take a hiring action against ms smith that she'd already been hired but even if he had hired wouldn't change your analysis because it when we have a say you're to hire and it becomes less important when you're looking at things that occurred to the employees already at work is there any case law that supports that about employment actions that can be taken against the victim and it in one of the examples that we that we use in our brief because it would lead to absurd results if you read out the against the victim language is a recruiter whose sole authority was to hire within become a supervisor for an employee that worked you know in another state in the store if he came over and propositioned her and that clearly cannot be the law i mean vance was very it was very specific in saying that it  doesn't become a supervisor just because they hire you have to come for the whole thing it's like hiring is one in disha but i mean another way to look at it is the dichotomy is coworker pers supervisor you never would think of a someone in that position but but just because you have the power to hire said that that's your sole power that doesn't necessarily make you a supervisor and that's not our situation of course it's not any is not even disputing that mr townsell did not hire the individuals it is not the situation here if you focus for the yes absolutely and talk about the things that your ever siri has focused on as i mean power  very he could evaluate he could recommend discipline he could recommend discipline but the record evidence said that ultimately it was up to the district manager to make a decision as to where that discipline would go or would not go to what extent i hear evidence in the record about the extent to which is a valuation became the de facto company evaluations and that and that raises were based on the no your honor in fact they're there the record is devoid even of a disciplinary record by mr counsel and there is no evidence in the record that he ever disciplined any employee much less the three individuals the only thing in the record is a signed evaluate that he actually signed on ms mchugh on but there's no evidence to suggest that that that his evaluation abysmal was going to result in some sort of tangible employment action the evidence simply was not developed by the e e o c and if you look at the at the and employees work assignments and unlike for example in farragher mr ira graham which was the district manager who is empowered to make decisions above mr counsel he was in the not that he was harassing her but that mr counsel was coming in late to work that he was using his bluetooth so clearly mr townson was not acting in this sort of you know a situation where he is the ultimate decision maker say under stop because mr graham was very active in the store he was there a lot the employees reached out to him and i had issues so under that circumstance no i mean i think that this this case really over the area of affirm i'm sorry what your favorite theory of affirms the three options was the one you're on i think i think that there i think that they're all strong i mean obviously i agree with judge may's analysis of the supervisory issue i believe that i will assume that's number one and that's number one they are my psych you have to rank them in order because again i think they're all strong is that even at this court does find that mr townson was a supervisor that all isn't met its affirmative defense and if you look at the evidence employees the policy miss miss who was a manager testified hey i knew as a manager i was responsible for enforcing the policy they acknowledge the policy on numerous occasions all three claimants said that they had access to the policy  cited in our particular brief so i think that that we have carried the burden that we have a policy it was an effective policy it provided for several avenues that occurred like point about the september contact but very was told about this not much happened for five six delay in implementing the policy when it comes to this alleged harassment because she first talks to barry in september and it's not for you know nothing happens for a while ok what's how do you reset several comments on that your honor first of all under the problem solving procedure mr berry is not the appropriate person in the chain of command mr berry was in fact mrs subordinate he wasn't even her manager is she's not invoking a procedure she was not invoking the procedure a b she also testified immediacy admitted to this fact is that she knew that she was required to report harassment immediately and she failed to do so and that admission  wasn't even her subordinate because they weren't in the chain of command but in the office and hierarchy he would he would have been considered her subordinate and that clearly is not sufficient to he had no authority to  correct any type of sexual harassment that may in fact have been going on and that's why it's not sufficient to trigger the duty to do something about it i take it your argument that that is my argument is well first of all it doesn't it doesn't fall within the problem solving procedure and second the chance to bring a claim what woods was very interesting with that just cook is mrs smith actually in october and this is undisputed in the height of the harassment mr graham was going to transfer her to a different store because there was a store down the road that was short handed and she was an experienced manager undisputed in the record that ms smith again this is an october call mr counsel and said i don't want to be transferred mr graham is trying to transfer me i don't want to go so i think that's very significant in showing why is she really being harassed a bit be that mr berry didn't even consider it to be a complaint of harassment and again the problem solving procedure is there for a reason it's so that people who can do something to stop the harassment or those that are to be notified us let's say you've answered the barry point and say if you're right about october thirty one it's pretty good from the company's perspective because things move along pretty quick yes but let's say for the sake of argument we decided to give him the standard of review focus on more mid october as when she communicated to graham the problem and then where would we did not but in in analyzing coworker harassment he did say that the investigation was still propped up ok so just what's the company's answer if we accept mid october is the time in which smith notified graham how does the case look from it is ok if it's  store and he doesn't communicate to dinner till november around about that the statement of fact with the e e o c agreed to says very much otherwise we're trying to back off of that now saying see we really didn't mean to agree will that they did not utilize the policy at all there they didn't complain until in fact they were confronted so in dealing with miss smith she had a conversation with miss dean or within about ten to twelve days of her alleged conversation with mr we're going to go with the mid october date the basis of her complaint there was i don't like my schedule it was completely operational issue and ms dinner was sort of confused because graham had come to her and said you know there's an issue in the store i'm not really sure what it is and so she thought it was an operational issue and asked miss smith and this is all disputed to go ahead and send in the letter so she kind of clarify what she meant by her schedule three page letter that was fa fifth two and a half pages of that was i don't want my schedule i don't work on sundays i don't have childcare arrangements blah blah blah blah and the very end oh by the way i'm being sexually harassed and then of the very never had to work with mr counsel again mr talcott was transferred from the store on november eighteenth and was subsequently fired after that so again once the complaint was made very very quick action by ms deen or to end the harassment and miss smith testified herself she was satisfied with the when he went to them so are you talking of in early november of two thousand and twelve graham goes to dinner and says brice is saying stuff in the store dinner ask him to clarify what do you mean what stuff and he says i don't know which was false given that smith had told grand that bryce was sexually harassing her dinner testify that she didn't even interpret the conversation with graham to mean a complaint of sexual harassment and she testified that she had no intention of taking any action as a result of the conversation with graham and the only reason she took action is because smith reached out to her irrespective of the conversation with graham but just just to make sure i'm grasping the point you're making that all happens within like forty eight hours that's all really fast that's the early november that's when i left the company looks good and i don't know i think considering the fact in the light most favorable to the see this happens in mid october graeme fails to do anything for ten days to fourteen days there are acts of harassment in that in suing period and authors and still has a problem with its affirmative started by focusing on the graham dinner conversation which i thought even you agreed happened in early november right that's correct ok so who cares about the lack of his telling everything when deaner response perhaps more aggressively than she needed to because that she didn't respond she only responded after smith called her and it was had nothing to do with the conversation with graham but i guess i'm just like why do i care if it happened so fast because graham found out did because it was a two week delight it was one i mean there were acts of harassment in that two week period which precludes summary judgment on the affirmative defense there's ample case what we're we're applying a you know a standard of really looking at the reasonableness of the conduct we're not looking at you know whether it's not a strict liability thing i mean there's a reasonable standard here right and it's unreasonable for the district manager to sit on that type of information for ten days and two weeks and then go to the human resources official and mislead her by saying i don't know what's going on when in fact he does know what's going on that isn't reasonable and give us a case or two that's the best case that would say that two week gap considering the facts are way really does look and reasonable what would be the case that we should read to figure that out well i think the this court's decision in clark versus u p s gives it says that if there is a question about the reaction of mid level supervisors which gra clearly was then that at least creates a jury question about whether the company met its affirmative defense and is that a two week type delay thing i don't i don't know what the exact temporal notion is in that case i mean i think that the point is is that if grant even if graham had acted the next day what he did was unreasonable because he lied to dean or is it is it a lie for him to say i don't know what's going on i need a manager who accepts the word of an employee without any further investigation is probably just is is probably more unreasonable than the one who takes it to h r and says i don't know what's going on so that appropriate follow up invest but this was reported to me that wouldn't be necessarily a lad fact that might well be a prudent management action because he's got supposed to do the onsite investigation he's supposed to take it to the h r person which he did i dispute that last actual premise graham was plainly in a position to do an on site investigation  supervisor he could have gone to town for that very day instead of taking it to dinner but i would also say that for him to get a report of sexual harassment and then to say if that's happening we've got to do something about it and then sit on it for ten days to two weeks and then go to the h r person and give him it give her a misleading report that doesn't even communicate sexual harassment that is on reasonable behavior and if the burden is on autozone to show that it took reasonable steps to correct harassment it's evidence fails and the district court was incorrect in granting summary judgment for that reason as well as for the reason that counsel was a supervisor hundred vance we thank you both for your argument will consider the case carefully thank your honour's the other cases here on the grease we can