summary judgment with respect to dr russell's hostile work environment claims because it found that dr russell had not raised issues of fact as to the negligence of the response and adequacy of the response and investigation with respect to dr russell's title seven retaliation claims dr russell did not waive any claims of retaliation at the district court level and there were issues of fact as to pretext and on a third note this court recently came out with the decision and zoran of the altitude express which recognize sex to orientation discrimination under title seven the lower court was bound to christianson and could not consider any allegations of sexual orientation for purposes of title seven and we respectfully ask this court to remain on that basis but with respect to the hostile work environment in the light of will all the things they did and in light of what your plan perhaps quite understandably didn't want to give them because there was ve investigation going on with the things that and why you could have easily done which was cost effective and within their control as required by this court and smell the suffolk county was to simply ask the defendant to palys told maps and meltzer for their ip addresses their internet protocol addresses as compared to the ones that have been supplied by dr russell through her investigation and it would have been a cost effective remedial measure to simply ask that you're asking somebody to school because someone says i suspect a and b and if that point gives no evidence because you won't give the evidence with these at the da but a and b are in fact involved to do war of and try to find out if they are involved and start doing feelings which if they are not involved which is possible turned out here that they were orbit  involved is an infringement on their privacy so i mean frankly i see more about the retaliation seep some possibilities here but i have trouble with what reasonably you can ask an employer who has done vis much to do in a case on the basis of what the date of a bit your client was willing to let him out so to answer that question twenty thirteen at the end of two thousand and thirteen in december the oio the office of equal opportunity was basically in full bore with their investigation and we can see that at that point there was a strong investigation  so in after their break in two thousand and fourteen the winter break they come back and the oio interviews torments and melt when they could have simply asked at that time what their ip addresses were that would've been a simple question because at that point the da had already the new york district attorney's office had already indicated that at the very minimum they had spoken to meltzer and that's professor thomas wife so i bat point they could have just simply ask what your ip address compared to the two that that dr russell had had provided one for residents which is was in east hampton which was a summer home which according to the deposition of toameh two years later he said he did in fact send random free stuff to imitate the effects of an unregulated list honor in terms of so the district court in our view improperly found that we waive that dr russell waived her argument for this twenty fourteen final written warning because on s judgment plain to balance former counsel did not directly rebut in his opposition papers that that was waived so in the main brief we argue essentially that at all times throughout the proceedings there was a six acts of retaliation even judge woods in his district court opinion that page fifty nine cites this this particular act in question this retaliatory final written warning as as as a retaliatory act so we're essentially saying that she doctor also complained about a co worker's misconduct that misconduct what had to do with one of her protected class bases primarily or sexual orientation and then she essentially was written up with a final written warning they didn't and why you did not employ its progressive discipline on her and there wasn't that warning converted to a verbal warning in january that's right your honor it was converted warning was it was an issue your honor however it was sent in our view as as a deterrent to say if you are going to complain you're going to arbitrate these things through the union we're going to we're going to give you a final written warning now will change so that the fact that it eventually was been one of the retaliatory acts as to answering it directly in the opposition papers i was not plaintive appellants counsel she actually changed counsel during the briefing here and i submitted the reply brief not withstanding that but we raise it again we raised it in our main brief and that the be found as retaliation as to why you think your second question is to pretext as to whether or not there was a tribal issue or fact as to pretext as to the terminations dr russell was fired during the pendency of this action she filed this action in twenty well but you don't raise that and you'll just know what you said at that time was that this was retaliation for some actions which took place six months before and some actions which took place two years before and three years before let's just take the six months by itself that we have often hild is not enough there you have something more here and that is the fact that the arbitrators found that the punishment was too severe and the question that i have is whether if you put together six months plus the fact that the arbitrators found that the action taken was too severe that is enough to say causation that's that's where  that the arbitrator found that the so called crime didn't fit the punishment that level the arbiters exact words was that the misconduct did not rise to the severity how does vet cause as you think retaliation of o simply that they didn't like this person which is perfectly obvious that they didn't like this person but not liking a person is not a title seven not liking a person is is a state state cause of action it's not it that's correct why don't we look at that just as the arbitrator and the employer disagreed about what appropriate punishment would be for violation of the protected yes i mean that and that the legitimate issue is clear i would point exact revenge on s p now and what we're saying here too is that and why you waited for this sort of opportune moment there was three benign e mails and that dr russell sent to a coworker complaining essentially about her protected class and might mainly her judaism she also see seed dean schwartz back this is the n y u liberal studies dean on that email and confronted her so for the those three e mails directly after the mediation of the southern district she was terminated so in terms of we were saying to answer question again judge covers i'm sorry if i didn't address it right away was we think that they waited for this sort of opportune moment similar to nest you know where it was like are we gotcha now you're fired for this and probative of the pretext would be arbitrator's decision obviously it's not binding on this court but it would be at least in our opinion it would be evidence of pretext is what you are arguing that one of the reasons they  like her was the fact that you brought these and that that is why the punishment was more severe yes your honor and that would be the argument coupled with the fact that they did not essentially you did not follow not that there's precedent holding it but it it's definitely probative of the fact that they didn't follow the progress of disciplinary where the arbitrator found that a warning probably would have sufficed or even at most a suspension but to terminate her  of reasons that they had whether that is enough or whether it was also linked to her bringing the suit is a question i see that this court is bound to nasser in the sense that it needs to be but for course they should so we find that the evidence presented so far if we could find a tribal issue of fact as as to the pretext i mean besides besides having three e mails for a century sticking up for herself and the district court never ruled this is to your point never ruled whether or not she violated the order and the district court never ruled also whether or not violating that order was a interviews the perpetrator the person who'd been harassing her and says he's you know you should have asked at that point for the ip address they had enough information from the d a s office they they should have made further inquiry is there anything else you want to stick consider in terms of deficiencies in n y s investigation yes the fact that in this is a stark one that the fact that they never updated the report so that all we all report issued by name is jolly this jolly report said at the last page that they will update the report when information becomes you know relevant or are able to be presented two years after the report was issued and twenty fourteen the perpetrator he admitted that he sent these random three three things so at a very minimum they could have updated the report just a calming a closed the loop on on this issue didn't have to update the report but we in our opinion it would be a reasonable thing to do and that their response wasn't for our how would that how how is your client affected by that well how does that make n y u responsible for a hostile environment that the argument but it goes against the spirit of the law in the sense of title seven under you know the show e o c case and also this court in due to versus jack who back essentially says that once employer has notice of a hostile work right they have to take reasonable steps to eliminate it yeah ok so let's just take a hypothetical there is a hostile work environment at the time the employer does everything there can be to investigate later on about the hostile environment comes up are you saying that even we should hold that in a situation like that we're the employer does not at that leader point modify all of the earlier brave the only reason i'm here is to as set forth in our brief to protect the record as is clear from the court's opinion below and the court declined to exercise supplemental jurisdiction over the state and city l claims which is the only claims for which my clients have a potential liability i was prepared this morning to about any misstatements of fact made by plaintiff in his recitation of the record and i see no need to do that so i will delegate  appropriate to raise arguments for the first time in reply and those arguments should not be considered in the plenary statement appellant argues for the first time in reply that the district court erred by finding the dr russell  claim rotten dr russell's claims religious discrimination failed as a matter of law and fact because tom metz was jewish despite tom at admitting to being raised catholic and he never actually converted to judaism he argued this for the first time but more importantly than that the argument mischaracterizes the district court's holding the district court never made any finding based upon any with respect to mr religion the statements about thomas is being raised catholic where in the statement of facts as noted in footnote eleven of the district court's opinion the court never reached the first prong of russell's hostile work environment claim and as the as the court stated in declining to address the first prong of dr russell's hostile work environment claim the court takes no position concerning the nexus between the complaint of conduct and any of dr russell's protected characteristics that same point is worth emphasizing with respect to the reference in the reply in the reference here this morning in oral argument to this circuit's recent decision and zoraida which expanded title seven to cover sex to sex discrimination to include protection for sexual orientation the argument based on zoraida is nothing more than a red herring here because again the district court's decision on hostile work environment claim was based only on the second prong the basis for imputing liability and the court that easy point if we were to agree with opposing counsel that there was error with respect to that is due to four or five areas of it you mention then she could to the retaliation claim since the court focused upon that during appellants argument with regard to the retaliation claim there are two so important points here first with respect to the final warning letter as we set forth in our brief but which was not considered by the district court below based upon authority in this circuit a warning letter or a disciplinary letter is not an act for a t in this circuit and what constitutes an adverse action is very close there are cases for it say where something is withdrawn it doesn't amount to edgar's action there are other cases with save it where it stays different way of dealing with but the question of what is adverse is anything but easy but with regard to that point your honor there's there's two responses that i would have first of all we're not resting solely upon the fact that the warning was withdrawn the authority suggests that disciplinary actions and warnings don't qualify as adverse employment actions for purposes of retaliation claim because there is no adverse employment action that ultimately flows from that it would be the subsequent terminations that would be the adverse employment action but perhaps more importantly here the acts which gave rise to that final warning occurred several years purpose report has told us that if a person would be chilled from doing something on account of what was done that suffices to be an editor say in the supreme court has recently quite strongly come out that way so that's that's for the standard we have to look at and there's no evidence in this record that there was any chilling effect flowing from that warning record in fact the evidence to this record is quite to the contrary on multiple occasions following receipt of following that final warning there's no doubt that this particular plaintiff wouldn't be chilled by anything but anything but that is the plaintiff's other theory that there's a temporal proximity with regard to the other theory of retaliation and here the arbitrator made a determination at the punishment in it that the crime may be thin but taking them both together why isn't that enough to get sure well first of all their record is clear that the complaints that ultimately that she cites in support of her retaliation claim first the complaint to the d a s office second t filing third the filing of this lawsuit are in long temporal proximity before the decision to terminate one of them two years before the second one year before the third six months before so the temporal proximity is beyond the typical two to four months that has been cited in this circuit as giving rise to some sort of inference of of a retaliatory act in addition with respect to the arbitrators  findings the arbitrator made no findings whatsoever with respect to whatever motives may have prompted n y u to take its action to the contrary it found that she invalid engaged in conduct which quite frankly is serious misconduct in this circumstance she sent e mails to a potential witness in this case essentially daring her to step forward to be a witness in this case something which not only and go back to what i said that they gave a punishment which was more severe than that warranted and other argument is no there was just a disagreement and punishment but the question is is that enough to raise that question of just calibration i would submit that it is not because there is nothing in this record to suggest that that was one of the reasons which ultimately motivated n y u to make the determination decision and again the record stands and caught stark contrast with that reality because you have a person who complained about these things on multiple occasions and a period spanning two years and why you never took such action it only took such action after she engaged in serious misconduct which and why you view it as tantamount to witness tampering in connection with a potential witness in this case which the arbitrator recognized the seriousness as at that the arbitrator recognizes serious misconduct or your argument is along the lines that even if one could imagine that adverse actions are taken in with a with a retaliatory motive because of some complaints that if they are so clearly merited the clarity of the of the actions taken should overcome the possibility that they might have been based on retirement or a motivation absolutely subject to the cavity as one of the problems with with retaliation as opposed to other types of discrimination claims there are so many reasons there are an infinite number of reasons why an employer can behave in an adverse fashion towards an employee and in order to us how much a discrimination claim based on race or national origin or religion or whatever it is there has to be evidence that that that is the motivating factor but once as to retaliate ition once the plaintiff has made some kind of a complaint or done something then anything that happens there after can be labeled as retired see i complained and then they did this to me they did that to me they disciplined me they warned me they eventually fired me it all can be can be can be retaliatory and and it's true that conceivably it can but if if there is clear merit if there is clear justification for other reasons for the things that were done makes a difficult question and any other conclusion your honor would tie employers hands once an employee submitted complaints like this entity that's why in this case there is a problem if we the arbitrators in a particular way because one could reveal arbitrators or say no there was insufficient merit that not there then the argument oh well there were merits may go i'm not sure what could do it in the facts of this case but it if i might respond to that i mean the arbitrator sits in a fundamentally different position than the district court it is the arbitrator's job to assess based upon precedent and agreements between the teaching staff at n y u whether a particular conduct justifies terminations in those circumstances whereas in this court under title seven of the law that we seek to apply here the authority is leaves in stating that this court that the courts should not step in as some super personnel agency and second guess the decisions of employers so you are say the decision of the employer to to discipline her was clearly justified big question of whether the discipline should be at this level or it is slightly higher level is precisely to second guess which we are not permitted to make an arbitrator may make it a matter of a contract absolutely arbitrator is permitted to engage in that second guessing exercise where is the authority that governs this court suggest that this court should not and for those reasons we respectfully submit that the district court's opinion should be affirmed in its entirety thank you rebuttal picking up excuse me as the super personnel decision to use the bernie vs cromwell case as we're not asking this court to second guess it either if the if the decision to discipline was terminations or if it suspension but under the facts are still within six months and to the point i have to make this your argument isn't that if because your argument with the implication of it would seem to be after and the employee engaged in with the arbitrator agreed with serious misconduct the employer couldn't do anything because a reasonable jury could at least if it wanted to avoid a jury trial because a reasonable jury could find retaliation well they could do something they could find her le disciplined if she was disciplined to a lesser extent i'm not sure if that will still get her to a jury but to the point of the six months not being a team being too attenuated this court is held in grant verse bethlehem steel that eight months was sufficient between protected activity and adverse action and coupled with the fact that we need to show pretext we believe that we raised issues a pretext that weakness is an implausibilities of the profit employers proffered reason for the legitimately non retaliatory action we find that essentially their reason for disciplining her was protection will to her complaint she complained a lot she complained often this was she also didn't settle at the  that again you didn't put in your complaint that the failure to settle was it groans for retaliation that would have been very close but you didn't claim that that was