on the motion to dismiss as well as the motion for summary judgment under the holding in twamley bell atlantic corporation versus twomey the supreme court has set out the standard for a rule twelve b six a motion to dismiss and all sergeant use than is required to do is to set out a detail factual allegations that gives the defendant fair notice of the claim and the grounds on which  under twelve the six a complaint should not be dismissed will face their claim unless it appears beyond doubt that the plaintiff cannot prove any set of facts that would entitle him to relief well that's the that's the old standard that's the old connally versus gibson standard i correct that the first dan did you mention i think is the correct one that's correct and the dismissal only goes to two of your client's claims right the others went out on summary judgment correct th dismissals if i remember correctly were the negligent supervision negligent retention and the intentional infliction of emotional distress is that right that's correct ok with respect to the the two state s long as he pleads sufficient facts to set out the claim for negligent retention and supervision then the court could of course decided not to exercise jurisdiction over the state law claims but as it relates to the allegations the complaint as long as he makes out those allegations of the state a claim it wouldn't matter whether or not he stated a claim on on the federal statute but if he loses that claim on the summary judgment issue then doesn't the naked supervision and to dismiss stage all mr houston has to do is stay enough allegations to set out the elements for a cause of action he doesn't have to prove anything at that one hundred ten but doesn't the neighbors and supervision and attention wrong it doesn't matter does that's correct ok so why don't we focus on the summary judge the district court judge i'll speak for myself first i couldn't find one word in the in the in the testimony in that in his complaint and the one before the e e o c and which there was a claim of sexual or racial discrimination and they and the first one is in the in the april eighteen employee o p s apartment i can't find one word in that entire document not even the word discrimination much less discrimination in violation of title seven nor could i find it and one dated twelve twenty four thirteen and i couldn't find it in his testimony i agree judge that and you tell us where it's mentioned well it's not specifically mentioned but i don't think that's the standard i think the focus and so what we have is we have a we have a supervisor who is complained about nothing that was protected under title so i have a we would disagree with that ok that's what i'm looking for we would disagree what again where where in these documents is there any indication that he complained about something that's protected by title seven well in his o p s complaint he used the all and the only place at all in this entire record where he said anything about discrimination is in the e e o c complaint and this is it i believe i have been discriminated against and retaliation for its participation and protected activity in violation of title stop that's all that is all and i agree with the court and there's not a word anywhere else where he complained to anybody that i could find that he was being discriminated against unlawfully and violation of title that title seven protect the focus again this case again your honor the focus should be whether employees communications of employees sufficiently conveys the employees reasonable concerns that employers acted in an unlawful discriminatory manner aside from the documents that judge joe flight asked you about is there any testimony from sergeant houston that he told his supervisors about harassment or a hostile work environment in any face to face communications or conversations that use and use and did not use those specific words so how close to he come is what we're trying to get to again if you look at the s o p s and it's important for the court to understand that the police department a city of atlanta is a paramilitary organization they use words like standard operating procedure chain of command and standard operating procedure the city of atlanta defines harassment very broadly it doesn't specifically say that has to be sexual it says that if an employee prizzi's that he's being a rast and makes a complaint about that that is sufficient to newcastle this of this is deposition on november the third this is after he's had a lot of time to think about these i'm going to ask you again this is a question to it i'm asking one specific question during your meeting with captain gibbs on april third two thousand and thirteen did you tell captain gibbs that sergeant mckenzie had made certain sexual comments when he met with mackenzie in the union representing the matter of fact she was telling you haven't evolved the union representative what that's correct going back i would have thought the union representative would know how to make a title seven clay and i would think so to judge but again sergeant he's not a lawyer the fact that he might have been artful in a ticket lading the specific complaints that he had against sergeant mckenzie setting out in his o p s or even talking to a supervisor doesn't preclude him from being protected for opposing it but part of a sense of claim is you have the defendant three factors you have to you have to show what we've been talking about that is protected activity and you have to show that there was an adverse action taken against him right and i think if we assume that the wrong standard was used by the judge can we  decide on a different reason for for example lack of causation because i'm concerned it seems to me the only evidence so they argue you make is the temporal proximity between the if there were  activity and the retaliatory action and the cases in this circuit are pretty clear after a certain period of time that presumption goes away and you have to have other evidence you agree with that law yes if i do what other evidence other than swimming that there was a wrong standard and that you prevail on that issue going to the next issue which is causation where is the evidence other than the temporal proximity that shows there was retaliation where the record doesn't have that violated title seven that he brought to the attention of the supervisor and we submit that there was evidence in the record sufficient in artfully as it may have ben that would have put the city of atlanta on notice that sergeant houston was being harassed by such mccann's and the events that occurred prior to him following the you'll see which includes is not being allowed to work the extra job the scrutiny that but the temporal proximity suggests that there is no causation so you don't have to seem to me the record is such that you don't have that to rely on what other than the time in this one time and seven is there to show that there was actual a reaction to his protected activity that resulted in some adverse action well we submit that there was a judge that the moment he started complaining the level of scrutiny she started sergeant used mckenzie started harassing him  denying his requests for sickly filing her own o p s complaint and none of that none of that was before i mean after the e e o c chart that's correct if you assume you save some time for rebuttal i what evidence is there that mackenzie knew about the complaint other than the fact that you have a timeframe so you can think duck don't answer that i stated i say that about summary judgment in favor of the city i'm also here to axe to court to affirm the judgment of the district court granted the motion to dismiss in part with respect to the negligent supervision and intentional infliction of emotional distress claims this clark before you get into your argument and the court may not need to reach this issue but do you think the magistrate judge correctly laid out the materiality standard problem i'm asking about the actual materiality there's a different materiality standard for a disparate treatment claim then there is for retaliation claim right that is correct or on or do you think that the magistrate judge correctly laid out the materiality standard for adverse action for retaliation claim no that's correct your honor is incorrect standard was laid out but we all believe that harmless your honor is this case is about misty used failure to report sexual harassment to his employer despite multiple opportunities to do so misty used and failed to tell the city of atlanta that he was being sexually harassed by his supervisor this is fatal to his retaliation claim and this means that any alleged acts that occurred prior to misty used in file in his or her anywhere in the record th the office of professional standards or any of his supervisors that he was subject to unwind to sexual comments or gestures by his supervisor as discord held in clover versus total systems the objective reasonable miss of an employee a subjective belief must be measured against existence substantive law there is no record of evidence whatsoever even though if we assume for purposes of this argument he subjectively believed that he was opposed in an on lawful employment action his object the objective reasonable ness of that belief when measured against the evidentiary record is not support was being sexually harassed by a supervisor so a doubt point to city of atlanta had no notice that mr used in was an gaijin protected activity the consequences of mr used and failure to advise us that he was being sexually harassed is that any of the acts that occurred prior to his file in the o c cannot now be used as a basis for him to question was what did you discuss your to april eighth two thousand and thirteen answer we discuss a mirage of things we discussed a lot of things question did you discuss the sexual advances that sergeant mackenzie made and a sexual comment she said she said towards you answer with him i'm unsure that i brought it up so the record is clear and appealing cannot present any contrary evidence that allegations of sexual harassment were brought up to the city of atlanta and this raises despite moves on to my second point which is that the district court correctly ruled that mr euston did not suffer a materially adverse those acts taken individually or collectively constitutes retaliation and the reason that they don't constitute retaliation is because there is no causal connection between the alleged acts and protected activity if we look at major that's a different dimension it's not material what even if i understand i understand the causation argument but i thought you started out by saying that there was no material adverse action that is correct your honor and under certain circumstances to court this and this court has considered a transfer to me to be considered a materially adverse action here it is our position that they are not because under the retaliation statue you have to show some injury or harm and there was no injury or harm was the injury or i thought we started out by you conceding that the magistrate judge had used the wrong materiality standard for adverse action that is correct your honor and i think that isn't the standard whether or on purely on adverse action not on causation whether or not the action taken is such to dissuade a reasonable person from complaining in the first place isn't that that and that is the correct standard your honor and if we're looking at a magistrate judge as opinion the magistrate judge did not use incorrect standard in dealing with the two actions that occurred after to file in of the e e o c charge the magistrate use the wrong retaliation standard in analyzing actions that occurred prior to misty used and engag well what did to just said judge analyzed it based on causation i know where you're mixing those things up whether or not something is material is legally different i think than whether analysis on that basis yes that's correct your honor i know you might make a pretty good argument someone make with your argument that by denying the you know the night shift and those things would deter the average reasonable employee transfer in someone to a different shift could constitute a materially adverse employment action to the ultimate result s but not under the that turns test yes that's correct your honor of the there's them the right thing for your said you're shifting into the third element which is causation yes let me let me ask you a little bit about the motion to amend there was a denial of the right to amend the  i apologize because i do recall d in the because i don't believe i believe the judge stated that appellant did not raise any additional facts one of the facts that he raised in his motion to amend a complaint was this issue of to enter light on notice and i believe there was an additional fact that he raised so i believe the court found that there were not substantially additional facts raised in his motion to amend a complaint and that's why it was denied but the issue regard in whether or not the court correctly denied his motion to him and i honor we do believe that the district court correctly moved to dismiss the state law claims if we look at the state law claims for negligent supervision the appellant presented no facts identify and these alleged ranking officials who were making decisions to assign transfer and intimidate employees appellant also presented no facts in this complaint about prior allegations of sexual harassment against sergeant mckenzie who is a supervisor and you present it no facts that the city knew or should have known that employees tendencies to engage in improper behavior were relevant to the injuries that he ultimately suffered the facts in the complaint were spat speculative and we believe that the court rightly rooted rule to dismiss joe's claims with respect to his last claimed intentional infliction of emotional distress the allegations that support that claim were related to your retaliatory actions with respect to counsel and memos and the o p s complaint that was filed by sergeant mckenzie and his requests for sickleave none of those actions constitute a type of extreme and outrageous conduct none of those actions or type of behavior that's regarded as atrocious and utterly intolerable in society so we do believe again that the district court correctly moved correctly rule to dismissed as claims to the extent that mr used in his argue and that the sexual comments constitute a basis of the intentional infliction of emotional distress we believe those claims are time barred as a sexual comments occurred almost more than two years before he filed this complaint i think your honor has to bear going back to jack talks question about the proximity in terms of the protected activity we agree that after the e e o c charges file the only that came up that could be considered verse was the refusal to transfer sergeant houston prior to that sergeant euston engaged in protective active in a couple of ways he complained record to a supervisor mckenzie rebuffed her sexual advances he complained to his her supervisor following the chain of command although he didn't use specific words like sexual advances or sexual harassment the test is whether or not he reasonably believed that what she was doing was a vile also the test whether without objectively it would appear to be so correct and there's a there's a difference and that is what we're trying to get at and trying to understand in this record there's a difference between saying that you are being nit picked and harassed for example someone's looking at your reports with a fine tooth comb someone's making sure that you don't arrive at work one minute late and you know disciplining you for that when others are not being disciplined and the difference between that sort of stuff and misconduct that occurs on one of the protected grounds under title subban whether it's raise gender religion sex accent or oh it can't be that you can just complain that your supervisor is harassing you generally and that's enough to constitute protected activity or is it i would agree that it's not enough but he does not again under the case law have to use words specific words like sexual harassment i agree with that but he has to describe the conduct he if he says she's propositioning me for sex and wishes that i would you know engage in this activity with her he doesn't have to use a word sexual harassment or you know sexual hostile work environment because the complaint about the conduct is self defining but if you don't mention the nature of the problem how's an employer to know what he's complaining about part of the problem in this case judge s l p says harassment doesn't define it or limit it to sexual advance it simply says if the employee believes he's being harassed sergeant use used and use those words and complaining then immediately after that a barrage of advance started to occur that didn't occur before and if the court had applied the correct standard the type of things that sergeant houston was subjected to would in fact be materially adverse on the burlington case but in this instance the court didn't apply the right standard and going before the e e o c complaint you have a couple of events that occurred that we submit to the court or adverse when sergeant houston filed a grievance about the fact that his o p s complaint had not been investigated for one hundred eighty days they finally found the complaint and said it was not sustained in the same time period mackenzie opens up her own o p s complaint against sergeant houston and even though they investigated the allegations for one charge they ended up sustaining it on a different charge what sergeant houston