but the best evidence of the number of questions of fact comes when you compare evaluations of miss by direct supervisor hawke with the happen she she knew when she came here that she was either going to be here for three years or if custom prevailed she'd be here for four years and then she was going to or she could do stand for yet another year and be here for five years yet yes she knew that eventually she would be moved again or she could be moved again she also could remain she just would not get additional benefits and stay even beyond the five years because they have trouble physician but begin to be that as it may in addition to the fit moving fifteen hundred miles her pay is reduced seven thousand dollars  ut it is an incentive cost of living that is that the da says as an incentive to get you to move to st croix but when they want to transfer you back all this isn't an incentive this isn't a change in your this is an adverse it was an incentive to get you here but it's not adverse to take it away to when you move that doesn't make sense and so it is an incentive want to get you here pardon me it absolutely is called  y the cost of living adjustment when she first came down was twenty percent it was raised to twenty five percent the it's tax free she testified in her declaration that there was a difference  her take i believe center declaration where she said there's a difference in my and what i take home at the end of the day after and after i pay for all my groceries and everything else in orlando than there is in st croix there's also the twenty days home leave she leaves so there's a of things here that she has lost as a result of the transfer and the memo that the da probably gated in one thousand nine hundred seven that describes the the incentives talks about the employee who decides to stay to extend from three years to four years doesn't say that if the da the da has a right to overturn that but it talks about the employee deciding to stay for an additional year and again in the context of we're trying to get employees to come here because we can't get anyone to come here in that context if she stays for an extra year he gets twenty days home leave which involves twenty days with pay thomas or puerto rico if you move if you're move from d c to philly they buy your house there's a set process for doing it there's a market out market study done an appraisal done if you if you're unable to sell it then they  and she was unable to sell her house and so they stepped in to buy it so i think you know on the adverse employment action she's moved fifteen hundred miles she's lost twenty days home leave which in twenty in our brief that whether it whether a benefit is the is discretionary or not you can't deny it for discriminatory the one of the one of the issues i take issue with on the court's decision was the fact that it only looked at some of the pretextual reasons given by hawke for denying the extension the judge talks about there being six primary reasons articulated inextricably intertwined the hawk says thirteen times in his a c affidavit this was for all the reasons that you know they're all combined i can't single one out and decision maker but as we point out in our reply brief because staub it just come out at that time hawk was the cat's paw and harris acknowledges that he says i wouldn't  stainless name had not come across my desk before or so when i got this oral report saying hawk does not want to incur no extension i said write me a memo so hawk writes the memo and he says it is the c affidavit i relied upon severity she gets the video the you're you the aggressive woman will like this video and she reviews it before that she has been coming in to the office earlier she and hawk are always the first if you're saying that and i will get to pervasive if i have time you have time ok thank you your honor it's a video but the one the aggressive woman video is severe she gets that video before that she's been coming into the office early she's a hard worker she gets that video and from that day on she doesn't come into around eight o'clock when everyone else is in the office because she doesn't want to be alone in the office with her so her conditions of her employment have been altered by one incident now how's that a environment has been changed her work environment before was she gets to work early she's a go getter hauke even points out and or claims in his the denial memo that she doesn't that is the most severe and said yes your honor but it's coupled with the other pervasive conduct and there we have i think the most pervasive because it's every day is her inability to get to the get a weapon o the weapons vault she's not given access to it she's testified she's the night access to she's testified that agent hawk can go out on a raid and event with his shotgun but she can't bring her shotgun she's shotgun qualified she can't get hers she's been denied that and every day she's in the workplace her work environment is someone can come into a da office and she and you you don't want to be in that situation or you may have to respond you may be the only person in the office and you have to respond to something you don't want to be stuck with only your service revolver if you've got a stronger weapon power in the safe thing but you can't get it out and that's pervasive there there is something to the record is that sh but he was given it he's the supervisor that and this comes up in the context of the reply memo so it's not fully developed but in say list declaration she says i was the n access to the weapon safe we didn't we didn't have the opportunity to tailor it in in the light of the reply that was to come to say hawk denied it to me and here's how many times i asked for it but she also testifies that we don't you're going out on any farming that's only when you're going right no she don't she does every other da she's a special agent every other special agent has access to the safe they've got the combination she won't be given the combination so she doesn't have access on any day on the days when it was her vote she has a service revolver but the weapon safe provides is where you have your backup firepower if you need your shotgun you've got to go to the weapon safe she can't get her convey first talking about the transfer remember your honour's that it's the plaintiff's burden to establish their prima fascia case so they are required to put in evidence to show why this is a significant change in benefit and disputed that appellant salah was transferred with the same base pay she was a g s thirteen step five and transferred with that same title and grade you can see that a joint appendix three sixty her gross pay was reduced because difference in cost of living but the plaintiffs at the trial level conceded that quote there was a theoretically no economic effect to this and that's at page sixteen of their opposition to summary judgment so before the trial judge they were saying well theoretically there's no economic effect how can that be a significant change in benefits how could a trial judge have erred in finding that there's no adverse action they didn't introduce any test and no testimony to say that this transfer was to a less desirable position or a dead end job like the cases they cite they acknowledge that she signed a mobility agreement when she started with the understood that part of her job as a criminal investigator was that she could be transferred around now they they make some statements about the incentives that are offered the cost of living adjustment whatever you call it it is there to account for the change in cost of the live difference in cost of living b t it can be viewed as an incentive in one way because it's not taxed here in the virgin islands and it's higher than other places so it can be viewed viewed as an incentive but were regardless of whether you call it an incentive or not said you know you don't you don't get the right to the twenty days until you agreed to the on her argument is look everybody who's been here before me who's a male if they wanted to stay the fourth year they stayed the fourth i make application to nelson versus scholar talks about looking at employment opportunities and where her employer and in fact she hasn't introduced any evidence that hurt her chances for promotion or her employment opportunities a were harmed by this in fact harris says one of the reasons that he transferred her first reason was she wasn't initiating any cases he looked at what hawke said and believed that he knew this guy who he was supervising the believed what he said about him about her and third that he thought she would thrive in a larger office that he thought would be better for her career now if you look at the harris but all those are contrary to prior to h is actually contrary to their argument a hostile work environment because the video was sent doon of two thousand and five she improves under what hawke says in fact that her deposition she testified my performance about the judge improperly weighing evidence there's no evidence of that there's no evidence that he judged credible the standard fluence let's take the most generous and or the most generous standard is the foot you can cast substantial doubt for not giving her this one year extension in addition to that they make an allegation that he shut down her opportunity to develop case and he testified in his declaration that he actually gave that case to he nine one zero one nine nine three this case is very instructive because it goes through this and says you have to look at at the employer's percent she has to hurt her excuses and a response have to make you believe that the employer is lying if we go through these if we go through these reasons he cited in the memo she admits most of these although she may shift blame on to someone else she admits that they happen she doesn't raise a doubt that these things didn't happen she admits a prisoner was forty five minutes late for a grand jury in a major case that was the only case the office was handling at the time she was the only person mr sole task was to go over there and make sure this person got there and assist the marshals but she was on a personal errand in her personal hawks subordinates that talks about them having problems with their and not wishing her to stay because of her not carrying the fair share of the workload at joint appendix one o nine  where the court explained that a plaintiff does not have to the stablish an adverse employment action it must only establish that the plaintiff the action taken against her was material and they talk about the fact that hundreds of cases say there has to be an adverse employment action  not discriminate for the probably but the men would have a claim but it would be discrimination and it would be actionable as the seventh circuit said in minor adverse employment action has become a pr  haven't seen another search circuit words addressed that but i would submit that no some sort so that a subversive lynette no no that is specifically addressed the point being made by the seventh circuit and minor that it's not required in every case i submit that no circuit in the example i gave would say this is not actionable to the there are the we have pointed out in our reply brief the disputed facts about the are actually in our present brief the disputed facts about the transfer of the prisoner he was a u s marshal service to the entire time she was a long second person required during a flight by government the you know what if she was good in march or in two thousand and five versus two thousand and seven we have evaluations from december of two thousand and six that are directly contradicted by the memo in march of two thousand seven and we don't have for example the claim about t f o france was occurring in that two month period hawk says that in his memo this was over the two and a half years he's not