next case on for argument is phil pot versus sun persevere and pervasive pattern of discrimination mainly from his direct supervisor the president of the college of optometry david he present routinely made comments that were on their face discriminatory based on plates of sexual sunni staff including president david he went with the use of methamphetamine by mr fell apart factor into this i don't think it factors into this analysis david he testified that he had no idea of the methamphetamine use and so after the terminations of employment therefore didn't factor into his decision to terminate mr focus employment he testified that he soley made that decision on his own with no input from any other faculty or staff or the director of h r so when he made that decision he said little i know it was to me a little odd that a director of h r would have some authority over a vice president which is what your client was correct or the h r director here but you're looking at his his ability to perform his work whether or not he complied with he took leave that's not in dispute right correct and whether or not he complied with the conditions under which he was supposed to be taking his we should assume right those those don't have there is a performance evaluation beach and this is done by david heath the president with mr fell apart in the beginning of september of two thousand and fifteen this is forty five dollars days prior to his terminations these performance issues  did he says he discussed the matter that time there is not a written performance evaluation he does not let the director of h r know that there are any performance issues he doesn't let anyone else know there are any performance issues his declaration that submitted on the summary j there is not a written performance evaluation both parties have there is a question of fact as to what exactly was addressed at that you know if it's typical or not to no longer than i would think it is not typical however david he determined at that time whatever performance edition performance issues existed were not sufficient to terminate plaintiff's employment and the nd plaintiff must feel about raises the issue directly to david heath that he feels that he's being discriminated under the sunni policy of discrimination as a duty to report that she title nine officer which in this case is also the director of h r it feels both roles he didn't report he said that does not sound like david heath you know deal with it with david  seems to be a common response from the faculty and staff at suny counter your last point really relates to the retaliation yes it ups and not let me just go through so there's a hostile work environment a more than one or two so that's that constitutes priest pervasive as opposed to severe yet and as severe because he is the same individual that can impede what is your best case for that and i don't know if that were a case hostile work environment under so i believe the record and the facts in this case show that it was more often than sporadic that it occurred each time he publicly so you agree that a lot of other individuals you agree that if you were sporadic there were work performance issues identified correct in a letter from mr heath or i don't know if it was a letter or their texts and e mails and letters but brag on their every performance issue cited occurred prior to that tambor performance evaluation david he at that time determined they were not enough to terminate pointers employment there's not one performance issue cited in that forty five dollars day period between when you st complained to david heath at that performance or work performance was sub par was not enough to terminate david heath himself the present determined at that time it was not sufficient to terminate his employment that he was going to rethink it over the course of the next year the question is what changed in those forty five dollars days will do something have to change or does does there just have to be a rethinking i said well now that i'm thinking about a good looking at all of this i have changed my mind right and that rethinking lends itself to the inference of discrimination retaliation here plaintiff had gone to doug shaping the director of h r in his capacity as a title nine officer point of it already put him on notice at that september meeting that he was complaining of sexual orientation directly to david  david heath knew that he had gone to the director of h r that her in the previous days when he asked for leave in his capacity as a title nine officer he knew the complaint was coming he knew the complaint was made and what he did he said he just sat on his own at that time the plaintiff's employment needed to be terminated what was there or not well look i think this is why i was trying to analytically separate out the three issues and you're you're it seems to me conflating the termination issue and retaliation issue by saying that mr heath identified these and others that he was not alone identify these were performance issues but it was only when this text was transmitted from your client and you have three minutes mr do you when you stand up again mr parker please the court i'm josh parker counsel for suny the district court properly granted the summary judgment because no reasonable trier of fact could find that the college created a hostile work environment based on sexual orientation sayyid on page forty eight of our briefs temporal proximity is not sufficient to establish pretext without more and here and this also goes to discriminatory terminations the legitimate reasons a written evaluation is to go through what fell part actually admitted in his deposition and fifty six point one admissions with respect to performance deficiencies so let me start with the deposition admission that  that's at page twenty eight dollars twenty nine cents of the supplemental appendix he also admitted that he didn't finish the a huge feasibility report this was a report he was supposed to team were supposed to finish in order to establish a partnership with the arab american university in jenin there was a contract there was a contractual deadline and he had to renegotiate that deadline and defied dr heath's expectations that he admits that on page thirty dollars thirty four cents of the supplemental appendix he also admitted deposition that he failed to timely complete revisions to the student could have conduct before the two thousand and fifteen academic year there is contemporaneous showing that there was there are minutes in the record showing that there was a deadline to get a draft to heath by may two thousand and fifteen so he can review it others could review it and could be published ahead of the academic year it was not finished until that is when you don't have any documentary evidence and there's no written review documenting these issues that you're describing now there is no written performance evaluation and of course that would be ideal but we're at summary judgment right now and we have not only deposition it is that typical no written now you wish and provided especially when there's negative performance issues i don't think it's typical anymore but i can't i can't give you a comprehensive answer to how typical that that was in the past but in addition to the deposition in fifty six point one submissions we have contemporaneous evidence of dr heath through e mails and texts and other documentation showing that philpott his dissatisfaction with felt hot so let's take the example in december two thousand and fourteen in january two thousand instructions contacts the rd parties and then he tells them you know we should meet to discuss this this was a problem i advise you not to do that that's at page two hundred and forty five then one hundred and ninety eight one thousand and nine of the supplemental appendix you could see those emails you also see hand they seem mails from a director of a french ops optical institute because let me just briefly explain what happened here there was a summer exchange program between the college of optometry and the french optical institute and dr heath directed fell apart in fall two thousand and fourteen to tell the director we're not going to be holding this summer exchange program anymore he never did  never did he told her but not until the spring so then the director sends a panicked e mail to dr heath saying i already enrolled students in this program and so they had to rush to get faculty in order to staff this program behavior which is felt they admitted in this deposition he started using crystal meth at lead this in april two thousand and thirteen and was addicted by the end of two thousand and thirteen this was following a breakup with his long term partner  that's when these performance issues start the last point i will raise is that you have to consider especially for hostile work environment but also for all three claims the context in which fifteen where he says i'm sorry that i can't to mr heath i'm sorry that i can't be more white or smart or street and within a very very short time a day to two days he is he terminated he sent a letter i believe on october st ok so within a very short time of of that text message which one  reasonably construe as a yet another complaint he's trying to natives so and look i will just i'm inclined to agree with you that that terminations in the absence maybe of this seems to have been justified or at least the does not seem to have been a showing a pretext but explain to me why a reasonable juror view of those last few days of developments in the last few days as a form of retaliation even though yes this is a terrible worker because of meth for whatever reason and he screwed up but you've known sunni that he was a  screw up for lack of a better word for years and intensified months before but it's just when a particular complaint is made to a particular supervisor that that supervisor determines he's got to get let me try to answer that i think it helps to look at the context from september to october two thousand and fifteen clearly dr heath is assessing these performance issues and assessing kind of terminations decisions annually when he does these performance evaluations so the accusation st occurs in september nd two thousand and fifteen the nd day of the performance evalu and in that evaluation he offers fill pot an opportunity to potentially improve his behavior he says maybe we could do three hundred and sixty evaluations where your employees give you feedback and we work with you in order to improve your performance he rejects that so he's already thinking ok this likely isn't going well but you know he's he's really trying to bend over backwards to help him out and this is consistent with planned that is probably the closest thing that probably precipitated it but i want to also emphasize that what really a mediately precipitated him to move from ok we're going to give this a few more months  fact that he complained about sexual orientation discrimination he already he told september nd he told them to and then that he engaged in a hostile e mail communications with the director of h r this is what he says in his declaration and let me just i read you some of them from the record they're pretty short this is after october th there's time won't specify the form of leave that he's taking on and these are some of the things he and he accuses him of doing one of the most insidious disgusting treatments of a huge human being i've ever heard of in my life can't believe it's happening to me when i need every fall germination mr heath identify these e mails as a reason for terminating yes he says while he speaks broadly of the terminations understands his performance issues and the degradation of his professional relationships and this is entirely consistent dr heath received reports and then personally justified germination let me add one different response to that because i really don't think there is anything more than temporal proximity and something that emphasizes that he didn't actually file a complaint sunni's procedure says we strongly prefer and i advise you to file written complaints or written complaint was emailed to him by sunni's chief counsel on october st two thousand and fifteen he was given an email address and said form there was some complaint filed and i'm just saying that that is not actually what the records show would you agree that a jury might view that as reasonably as a form of complaint another you know another complaint about sexual insulation and know i think that's certainly possible but this is no different in kind than the stream of e mails and text messages that were coming in a month prior so i don't view it as a distinct date where there was action taken this is the st time this happened and then he complains that in fact heath testified in his deposition that in april two thousand and fifteen he also mentioned the puddles i mentioned sexual orientations screaming nation i just think and i'm pretty sure all sides a summary judgment makes his leave request in his role as a title nine officer he doesn't make it directly to david heath it wasn't actually policy that he make it to david he david he simply expressed no one had not asked him directly previously there was a reason why you didn't hear that's because he was complaining of discrimination when you said there's more than temple plus and that he and then you start to refer to the sequence of events that seems to be if some form of temporal proximity so what either he gets that text message and it will if it's eleven o seven am on sunday morning he said he then drives back from a conference up see it's only after he gets that text messages and text message and knows that he is the subject of a complaint  r that he overrides that leave decision changes his mind and says calls cheating and says i'm terminating points it's employment because of the different from the argument based on temporal locks and because you have the discriminating official that's being complained of now overriding the decision of the director of human resources who accepted that complaint and says we're now terminating his employment based on performance and interpersonal issues cherry accepted that and wrote a letter signed off on it and sent determination letter to mr fell apart based on those issues he had no personal knowledge he testified to that he had no personal knowledge of any performance issue