held that a reasonable jury could find that is why it was subjected to a sexually hostile work environment based upon as the district court stated continuous not isolated inappropriate touching from september through december two thousand and fifteen the district court however incorrectly dismissed ms y a hostile work environment claim based on the supreme court's argue that it was entitled to that defense or imply or in any way argue that defense further the district court gave ms was no notice that it would grant summary judgment based upon the serger defense rule fifty six ask requires the district court to give the plaintiff's notice if it is going to dismiss a climb on the ground not advanced opportunity to respond for the plaintiff to respond based upon an argument that the defendant did not advance and that's what we have here the district court correctly held that a reasonable jury could find that the harasser in this wyatt and repeatedly called him a member of management so that's a that's a piece of evidence that the court can look to adage reasonable jury could look to in finding that he was a supervisor furthermore billy da and other ms white supervisors relied on walter mullins recommendation to him and statement to him that he removed miss wyatt from a large project that she was working on under mr m uncomfortable and then nine days after she confronted him she was removed from that major project on october the st and she was by davis at the b b c has that correct that is correct not subjected to a tangible or adverse employment action with respect to any of her claims in this case not only the sexual hostile work environment claim but all all three retaliation claims it did not argue that she was not subjected to  adverse employment action the district court then went on to hold in applying the farragher defense went on to hold that that ms wyatt waited too long to report the sexual harassment and respectfully your honor she did not wait too long because the harassment was ongoing and continuous from september to early december two thousand and fifteen and the district or acknowledge that fact and its holding it had a block paragraph  did she complained to him did she go anywhere else did how much time did it take for her to say you know what i don't have to put up with this somebody this company will help me yes you are here are the things that i did st when the hotel incident occurred on september nd is wyatt rip off that rejected that's attack me back to the office right now which was about a mile away and so that was one second on september nd two thousand and fifteen she confronted mullin about his continuing ongoing conduct and told him it could not get off and it made her very uncomfortable rd the next time she reported it was to him another manager david butler yes a butler was how long after that was on november the t so that was how many months did she put up with it before she went to butlers as kind of i'm just curious yes you are she put up with it from separate from september and october and then in early november went to david butler and finally had had enough after telling mullen on two separate occasions september nd september nd at least that to stop and he didn't then she went to butler on november th two thousand and nineteen told about the continued unwanted touching it made her very uncomfortable and it was it was a sufficient report for butler to report it to me sonce ethics and compliance hotline nine days later on november th in a twenty minute telephone call to the compliance hotline wondered why he was he asked about why the delay your honor i can't remember if i asked him that or not i just i know that he did report it nine days later he probably did answer i'll look that up during the  break but he is undisputed he reported on november the th in the twenty minute phone call to the epochs line and then from that period the son should have done something on november th when butler knew about it he was a manager charged with a mullen was given the impression that he would be fired so he wrecked correctly or they did not confront mole until november december the th so so from november the temp was her st report to management empire manager performance improvement expectation plan that was premature your honour's this is one of the most pretextual pieces of evidence in the case the empire was issued on december th or in december two thousand and fifteen  davis testified that you can't issue an impossible employee has a below expectations for annual performance review is why its last two annual performance reviews were meets expectation or or above expectations in ten out of ten categories davis went ahead and gave her this three months before the review period was up siskel year two thousand and fifteen did not end until march st two thousand and sixteen yet as soon as she took medical leave and he admitted he knew she took medical leave for back surgery in the summer two thousand and fifteen while she was on leave he wrote the empire he never gave her a chance he held her medical leave against her when she came back he gave her the empire so that he could so that he could give her a negative performance review and thereby holding her medical leave against her because she was out for five months due to the back surgery and complications from it and the f m l i says you can't use taking a her any opportunity to meet the expectations that he set forth in the empire again he says he did the empire in december two thousand and fifteen and then before she ever came back dramatically on april in april two thousand sixteen he created a below expectations annual performance review without ever giving or opportunity of meeting the expectations in the employ of the created and so that by doing that you're effectively holding the employees use of five months of medical for eight for a serious health condition back surgery and complications against her when she came back she had no opportunity to try to meet those expectations davis had planned all along to paper the file and give her the empire give her the performance review you know he end up reading the attorney's letter while she was on leave he ended up reading her e l c charge all the circumstantial evidence saying retaliation thank you are thank you and ultimately granting summary judgment or nissan and while there is certainly some disagreement about the various ways about which summary judgment could be granted there are multiple avenues by which s court should affirm the lower court's decision and and a farm separate judgment for any song with respect to the various arguments that have been put forward this entire case is against the practical backdrop of an employee tenure wyatt it was a project manager from the time of her employments in two thousand and thirteen she'd been a contractor for a period  time in two thousand and twelve as well all the way up until today she's still employed as a project manager she has been on a medical way since february of two thousand and seventeen for various the waves which have each been considered and approving and each of those leave the shortest that which was more modest i understand that that's part of the entire calculus but what this case is really a payout is about the specifics of a sexual harassment client and an automobile accident and the time off for that  sure i'm sure there are problematic for any employer but that's not the issue here you know the issues that we're concerned about and what is the procedure and the decision that related to her  to the sexual harassment kleinian and it seems to me that the district court below did a really good job of mustering the facts but then in its alternate decision relied on december three the plaintiffs report to nissan as the time for lying that was significant and then questioned both the don't lie a from the september  mullen himself which i am sure was was a difficult thing to do to go tell the person who is your supervisor that you do not want them to touch you any longer but she did that on the nd of september if she was assaulted in the hotel and twenty days later she went in and say please don't do this to me anymore  comes back and the i think the testimony is she was scared she was upset you know then she gives it a little bit of time and revetment stock and the guy continues and so she goes she goes back to him and she says please leave me alone nine days later she's removed from the project she's working on and then a month and ten days later she tells and nothing happens she's off her job so then she goes and she talks to bud and he waits nine days before he reports it nothing else is said to her so on december thirty reports  herself but that's not the time period that's in question i mean if we are looking at what she says she did in this circumstance twenty days after he assaulted her she said to him do not do the us and then about a month then a few days later she reported it to management to the management that was supposed to a media lay reported up the chain now depend on a time period that doesn't include her actual an issue will report to a non harass and supervise your i thank you i'm happy to address that there are a number of reasons why summary judgment is nonetheless appropriate for nissan in this matter and the backdrop that i was attempting to explain to somebody who is familiar who has been has been treated very fairly from the time of her employment has really been granted  has been responded to in a favorable manner consistently so this is a backdrop against which she knew how to bring concerns forward she had regular interactions with human is under speeded that the person time that meeting was never said about the hotel room was december rd to a char nothing was said to mr butler about it and miswired didn't say anything to anybody about its human resources  just somebody who is my can jokes this is a guy who's coming up in touch and her and you are right but she reported on november right and she the record reflects that she says that she said something to mr th this is more than two months after the the incident that she alleges in the hotel room that a wound that two month period is over won't evidence that would reflect  supports that she did not promptly reports this conduct despite the ability to do so reporting it to mr malling respectfully reporting i believe it's i believe it's still on the circuit that complaining to the person who you a wage has mistreated you is not the protected activity it is complaining to somebody who's in a position to do something about it and here it wasn't until more than two months later and it was in her very whether the person w supervisor i don't believe it makes a difference your honor and here mr mo and i did you want to point out that mr bowen way whether or not he was a member of management or not that is not the determinative issue under farragut eller that if it goes far beyond that it requires it in a much more so specific showing that the individual be in a position to take tangible employment action her job duties that she is claiming she should have been relieved as part of her reasonable accommodation one of her complaints here is that she had too much work to do being removed from this project i would and i would also note being removed from this project is not being suspended it's not having your pay docked it's not it's not an adverse or tangible employment action she's got other things actually her i'm clear on or she is making over one hundred thousand dollars a year in this position she's a salaried employee her pay was not reduced her benefits were not affected there was nothing about a room and she had been removed from projects previously under prior management as well so this wasn't even the  there needs to be evidence of actual causation temporal proximity to here is not enough and it's not enough for a number of different reasons and that is that if something if there are events that are ongoing and something your performance that have been expressed and this is a this is again somebody who was not and exceeds expectation employee who was beloved by all of her prior managers and suddenly becomes a problem employee if you look at the history of and mr davis who is who was her supervisor and was the person who evaluated her it was the person who personally made the decision to remove her from the project not just based on what mr mullen said because there were others who had expressed concerns that others who have expressed concern sense including brian smith another manager that all echoed the same common refrain that miss wyatt why she was good in technical aspects of her position she was not effective in moving projects forward and i think i think you're still concerned for me i don't dispute that but we're talking about and it seems to me that the background of this question is what does the record show could a reasonable jury look at that time trying and conclude in the red by september nd for the rest of september and well into october she says nothing to anyone about anything in fact she actually goes the lunch with mr mo and again and does not say anything about any a wedge to sexual harassment it doesn't say anything to anyone whatsoever about this this september nd incident no it's all room until december there are thirty four months later and so i  believe that that they were talking about a reasonable jury that a reasonable jury could not be clued that she took prompt action and made a report with in a reasonable period of time  n my time as any method you can finish your thought here i thank you particularly given the the nature of the accusation if if the accusation is that somebody has exposed themselves in a hotel room off site that is not something that you sit on for two months it's certainly not something that you sit on for three months which is our long it took for her to say anything to anybody and within ten days of bats mr bowen was gone he had been suspended versus autozone case i do want to make sure we we point to that case in particular pretty but the notion that whether or not mr mowen was a member of management or not he was not her supervisor for purposes of this application of the he was a coworker one side question i'm sorry i i don't know earlier did you raise the for for a minute defense the summary judgment briefs and the district court w that this court has set for that notwithstanding the nature of the allegations and also address the fact that there was no tangible employment action taken against her i will note though that whether or not it was specifically by the court in its brief summary with this is not something that's coming out of the blue for the st time before this panel and if there were a concern about it it's something that could have been raised at the lower court and was no after it was i mean one thing that i would know you're on is this miss something that was st raised our focus in the initial summary judgment brief was where a number of supervisor for purposes of the law the the issues though were i think we're spending a lot of time on this and that what we'll do is look back and look at the briefs because i  your strength is that he this is coworker he's a secret we say oh we say a reasonable jury could conclude that he was a supervisor based on the record evidence your honor and even if he wasn't a supervisor is why it did not unreasonably fail to take advantage of nissan's policy chute she objected to mullen counsel said that's insufficient that's not right ios e e o c versus new breed logistics seven hundred and eighty three f vs autozone that's an unreported decisions your honour's we would instead direct you to smith versus rock in two thousand and sixteen reported decision where there the court hill that the defendants  days waiting ten days to do anything was a reasonable jury could find that to be an unreasonable to lie here we have twenty nine days between november th when ms wyatt reported to manager butler and december delay by the plaintiffs here of what did we agreed it was three months not know it was september to november th so two months never mentioning the harassment it happened in september right september and st reported in three months later to anybody other than mullet well she reported the inappropriate touching to butler on november th but yes with respect to the one incident the hotel incident she was ok that's a three months but the other sexual harassment she endured she most certainly reported today butler such that david butler was compelled to go  and says you can do better here and here's how you can do better there but the fact of the matter remains this is why it received above board meets and she wasn't a c she received some above expectations and some categories meet expectations in other categories and ten at a ten categories and then when billy davis rated her on a half a year he rated her below expectations in five out of ten so if you look at the evaluation as a whole year honors she was a sack she was above and meets expectations in every single rating category some snippets of you can improve here and there notwithstanding i see my time is up your honors unless you have any other further questions of me that that's all i have any further questions thank both for your argument in the case could be submitted and you may disconnect the line thank you and your arms