hours and other words he controlled whether she worked at all it was more than just setting her schedule or saying today you work in this position or that information it wears whether she wants it all he controlled whether she came and unearth an income  a full time regular employee on so she was essentially filling for other carriers when they either had too much work to do your carrier was out on her for other total for transitional employees and mr duncan could decide whether messages that's correct the the post office is pretty pretty strict with their over time so it's really a matter of whether she was working twenty hours or ten hours or forty hours they that's one of the reasons they have the transitional employees the so that they can bring the to keep the other carrier from working overtime so really the issue is just straight time between zero hours and forty hours depending on on her cooperation when she says that the per hour for could other than her just saying that there's any documentation as far as pay records are concerned that shows fewer hours worked during this period versus more hours work during the later when there is deposition testimony from both  supervisor when she wasn't as i said walker to it but he said as i understood it that she still got as many hours per week as everybody else the guy coming in later she got as many hours and i didn't say anything to rebut there that was her position the other she and the other carriers said that that was not the case but yes or that is what he said what what she said is that her work hours remained fairly constant during this time that's what she testified to at the j at seventy eight seventy four and that she made i think i made more money than i ever made in two thousand and ten that's correct that was after because of the cooperation with the but her hours were fairly constant she said ride once once she began cooperate ing over the first couple weeks of him becoming her supervisor she got the message if she needed to participate and she did so for the overwhelming majority of the time that he was her supervisor she anything that we should see in those that is favorable to your client i don't know that there is your honor because she started essentially of almost and again once she once those first couple weeks hit and she realized that this is the way it was going to be she did work pretty consistently thereafter because of her i'm going to exchange i tell you i couldn't find anything that would tell me how long a period of time she was having her hours could according to her testimony week to week it was just very short period of time just a pound or matter of a few weeks is that in the record anywhere i don't that you recall don't i believe that it is but i can't i can't  let me ask you this question lissa pose he is a supervisor and that there's strict liability and this goes all hypothetically or are year too was it your position that the post office the employee would have liability for an extended period of time even live or for a long period of time even though there are opportunities available to her to report this and get it stopped it is your honor because they were aware that dun degree of mismanagement in a similar manner as what what if it goes over five years what if it goes on to the point that it's just unreadable this is going to impose liability when she clearly has a way to stop it and but their reporting system did work for the other employee you're talking about it did not nothing nothing happened to doc and he because the employer when they went the they talked to the employee that complained they tried to talk to her and she said they talked to the supervisor he stopped and they went back and talked to her and she said there's no more problem correct he so how is that not working it was stopped for about two weeks and then the supervisor that she can point to left and when that supervisor left he began harassing her again it was only oh well began harassing ms meadows again that's correct where is that in the record that sent her a letter that on her and her statement that she wrote in the record that after after it was about two so how is that the post offices clearly the action that they took and taking him out to lunch and telling him to stop doing that did not for that was not sufficient it didn't deter and deter him for two weeks and then right back up where he left off it's hard to quantify she works more that you have to do something to quantify it so much money was involved well you have to chose what the hourly rates were in this case you earn more money not less so it's not a matter of being able to say i would like to recover x amount of dollars because that's money i did not earn during this time period in this case she did earn more money which can still be a tangible tangible action this is just a claim for for the damned for the compensatory damages for the sexual harassment that went on not for any loss of hours because i did it was such a minimal amount of time that she lost hours until she  joined in on that what he wanted her to do are you taking the position of the assigning her to a bad route is not giving her an assignment that with significantly different responsibilities i mean she's delivering the mail and to get her out she's delivering the mail in the back routes i think it just goes to show sort of the type of harassment or the pressure that she was under to participate and his requests for these text message is that our position in brief but you know as far as her duties your position i am not changing our position on this so it is still delivering the mail at the end of the day we think that it's punishment for not cooperating but the but it is still delivering the mail it's our position that it goes to show i get the treatment our harassment that she was suffering the reasons that she was fearful of complaining that she would be punished when she didn't cooperate and the punishment would be things like lesser routes are more difficult routes so i mean i think it goes to the mindset of why she was entangled in the situation court granted summary judgment to the postmaster looking at vance versus ball state in determining that david duncan was not a supervisor under the standards set by the supreme court and the plaintiff did not suffer tangible employment action in any  to great lengths to say talk about what supervisor means and what it doesn't mean you are supposed to service designated the in his job description as a supervisor yes and he did have some control record you don't have any evidence that there was the are huge range so i say i don't know it's not in the record i wasn't here to talk with it but you are if i take it back in the joint appendix we live with david circuit ruled in mccafferty which i cite in my brief which the district court cited in its opinion where they said just the ability to control hours bringing someone in to working extra shifts or sending them home early that in itself does not meet the standard discipline drops out of the standard and then is relegated to footnote not where they talk about they say well and that a supervisor imposes discipline might meet the standard we're adopting today if there is a significant economic impact and then a little later they said a coworker for instance cannot dock someone's pay dock and implies discipline you go home for the rest of the day you got a bad attitude you're not working fast enough you're an hourly worker decisions pre date dance and dance now comes down with this tight list and they throw the docking comment which they they cite for this is man's coworkers the court noted can can inflict significant change in pay it's significant change in benefits and they do put that language again later which will look at a supreme court decision have you ours might be thinking if it gets to the plaintiff here might not be significant to the post office but it might be significant there are if you change her hours just you know just a couple hours away well i think what we're getting at it did he change her well we don't know what that list they throw discipline down into a footnote they make this point that a comment about docking which implies that yes they think docking is going to rise to the level of a supervisor but we don't have docking or discipline in this  their work or well out there are going to work in the same harm basically to the employee it is the same one i said but when the supreme court throws out the work doc i submit that there's a disciplinary aspect of disciplinary power and what we're what we're trying to get at the whole point of vance and vicarious liability you know it's a title seven is is a preventive statute adopts a law the law of wood will consequences and in farragher an elder if they're saying we're going to create this balance of responsibility if you get there if you get to the from defense where you have to have a policy and it has to work and the employee has to be responsible and use the policy to stop harassing me because we want to stop these cases not generate much litigation because someone's wait ten months and participate in the harassment and then her husband blows the whistle and now we've got a lawsuit now want all this money but you don't get there until you determine is you submit his job description doesn't support it what he what he was doing doesn't support it and her to her testimony that she worked rather a forty hour week and remember his testimony between the five days six days he said i was trying to maintain a forty hour work week that is the testimony of someone who's just trying to keep a forty hour work week not someone who says i can call in thursday or not and there's no evidence that he had that power affected that night and let me ask another question somewhat related to the subject says wait a minute we have you're going to work five days weeks or six days we deliver mail six days on the week she works six days you're going to cut you're going to come in later as is every time sheet for her you know these are the sixteen weeks that she worked the six she came in later because you can work a six day week and look you can see not only does she get her forty hours in each of those days she even made a little bit of overtime i'd like to switch back to you know we're not we're not going to give up  on on him not being a super book supervisor but but even if he is assume we look at whether the employer's entitled to have the affirmative sense of fair her and arthur and that will depend on did he in fact impose a tangible employment action on this employee because even with a supervisor if they didn't impose a tangent when an action which is an action that is so significant that is known or should be known to higher management so it becomes the act of the  corporate entity itself and that's where mccafferty said you know just a schedule who can adjust hours that's the control over day to day work activities that is recorded and specifically rejected and that and that and the dissent acknowledged that is being i believe was really the up the only circuit court case that addressed control over ours duncan have the authority to determine whether or not ms macin nature or you pronounce it came to work at all i don't think the record says that they're the record he says he schedules ours and then in his second decoration he makes clear i'm scheduling her in every one between five weeks and six weeks to maintain a forty hour work week we're not she says specifically they changed her work status when she didn't for this effect referring to participating in a sexually explicit text message she said he brought her in later in the day picture where you got a list of factors and that's it we're rejecting the control unit that they either see guidelines of looking at everything the supervisor could do or has done and i submit the rejected you've got you've got a specific list of factors that's what you look at he said if she's not a supervisor and then he jumped into the colors from a defense this is a perfect kind of case and he also said there was no tangible employment act to get to the affirmative defense we have to show that whole business of wellness matters complained she complained the station manager came and he stopped it and then he went he did the right thing went back to her and said now tell me what's going on is there you go she said i lied and told me everything was fine were you looking at the employer this i asked her in her deposition why did you not report this and she did not want to say because of what happened to mr meadows i knew it was pointless because they they they they they ignored her and let her be abused why didn't you report this not once in her deposition testimony did she say because he told me he was going to fire me or punish me if if if i didn't do it her statements were that i didn't i didn't report it because well i don't know i had even see george i just didn't want to make trouble right or wrong or that was just my mindset i don't like controversy then she said others want to get him in trouble at one point she corrected me on that deposition see that i didn't want to cause trouble it i'd like to just come back to to to what we're looking at this whole business of vicarious liability and you're one of the first circuits that's going to be analyzing a fact pattern under vance whether or not  affirmative defense for you these people can just not report this for months years no from a defense that's a serious serious consequence of deciding who is or who is not a supervisor under vance and i think the district court got it right in this case control of the hours he did they had a minimum number he wasn't setting or hours it was today you're working for the fryer some tomorrow you work in the cash register it was much much less authority than in his case in determining whether whether and how many had the ability to tell somebody or to not call somebody and if you didn't feel that they were doing as good a job as one of the other physicians that was already with you that he has a supervisor don't you have a problem at the next step how have you met your burden to establish that there was a also have you met your burden of showing that there was a significant change in her playing that status by participating in the texting and whatnot with him she benefited she got more hours than she would have gotten otherwise she her own f taylor who says he was late at tea and the rest of the team that's what you are right correct they were employed he would be starting at seven thirty he would always get the worst route and when she w question a supervisor should be told us well it is reason i know this we would question why she would get dumped on all the time i worked for the post office for fifteen years last year and i've never seen one so someone treated this it's tangible employment action which means it could be a benefit or an adverse action you can be hired if you do this i'll hire you if you do this i'll give you more work and more hours and it's our position that because she did cooperate bob stating he is this is a different situation than what we normally see normally there's a refusal and then there's published by this case there's not a refusal there's an acceptance and then your position is what goes off and then there's an effect a hostile work environment because she's having to employer may need not have the final say is the employee main need not have the final say as to the intangible employment action instead of the employee's decision may be subject to approval by higher management if those words sound familiar to  hourly employee now getting to work fax or pay and i don't know that there can be other that sort of removal i don't know that there's a more more tangible employment benefit and how much money on again short of being outright terminated from your position i think that would be the next the next step is controlling controlling your pay both of the problem you've got is that while that might be a good argument the supreme court used very specific words hiring firing but your report mode so you know they didn't give us a broad