morning or may please the court allan schoenfeld for the appellant the principle question and this appeal is whether a reasonable jury could conclude that leo di entry was suspended and his professional responsibilities materially impaired because he gave two testimony outside of an airport as a dormant investigation correct you're looking at this record it was not clear to me how you that characterization could be made short the incident took place in april of two thousand and seven there was one contact between two thousand and seven ok so that that happened right correct so it what would lead someone to conclude that yeah they interviewed but this is going no places they're not going to finish this is just it just ended there was a three month gap between the incident which the government now claims was so objective lee concerning that it's apparent from its face that it was motivated purely by by the government's concern for what had happened there's then another gap of six months in time between the interview and a notation in the record of page eighty one forty seven that concerns had arisen that required further investigation and your experience how long do these investigations normally i don't think there's evidence on the record to suggest how long it takes what matters for  as a matter of law would be sufficient i'm not sure there is a matter of law here i what i would point your honor to is the fact that this investigation was not returned to new york for further investigation and it didn't actually pick up any meaningful speed until day he is dragged into a supervisor's office for a hostile meeting and the week after that the investigation proceeds in earnest may second may sixth may ninth their investigation but but for the subpoena this investigation there's nothing ever would have happened after that you think it would have just ended i think a jury is entitled to hear the evidence and determine whether the the the government's added pursuit of this investigation only upon receipt of the subpoena to participate in each case together with the other evidence that you have a little more argument don't you that the government thought so little of this incident at the airport that they didn't appoint an investigator until september to to to to investigate that's certainly right i think the investigator is appointed for the first time in september and there's conyers interview in november correct and then nothing nothing between november and the exact same time that he receives a subpoena from oprah and to testify in th why would he be punished for that the testimony from mr danders supervisor is that there is a cultural understanding in the office that whenever you hear the word e o you look the other way a jury could hear that evidence together with the receipt of pervasive climate within the office disparaging participation in each case is generally the temporal proximity and also judge chen i don't think the government disputes that his conduct was protected activity your question m ultimately go to a question of causation for the jury to resolve whether that event is of the type that would trigger the type of retaliatory conduct the evidence of causation the evidence of causation is the temporal proximity between the receipt recognized the investigation itself can be an adverse employment action and then it's the fact that this investigation which again mr danders says was flawed eventuated in his term a nation in two thousand and ten or sorry his suspension in two thousand and ten so the government urges that this court consider the temporal proximity between receipt of the subpoena in april of two thousand and eight and his suspension of two thousand and ten i think that misconstrues both the submission and the record there was an investigation that lay essential dormant four investigations in the first week of may there were multiple and there were multiple i'm sorry interviews multiple interviews with witnesses with mr de andrea again there were interviews on may second may fifth is when the andrea testifies in wailea and in may and june their investigation sorry interviews on may ninth may fifteenth june twelfth june twenty sixth and request for video footage of the incident on may fourteenth if this incident was so objective lee concerning to the government why request the video footage thirteen months after it took place during this time period the three years between the incident and his suspension he is walking around with his badge carrying a gun and yet the government now claims that a jury couldn't even get this question because it is so objective really clear from the record that this was a dangerous an incident that required his suspension you disputing that it was a dangerous incident mr di and you are certainly disputes the government's  conclusions with respect to that incident that he acts of the incident are that he was found outside of a terminal at j f k with his gun drawn aimed at two civilians in a car whom he had basically followed into the airport to let me all in the first one is mr dandridge says that he was threatened by the by the individuals in the car and that he drew his gun in response because he felt threatened it is for a jury to determine whether whose account of that is credible but more importantly even assuming he felt threatened and that was his reason to do it isn't that something that warrants investigation that is something that the government can submit as a legitimate non retaliatory justification but even so the jury gets the question of causation geisha but there was no interest i think that's absolutely right but there were more and more directly to judge chen i think it's irrelevant for the procedural status of this case they submitted this is a legitimate non retaliatory of shark factual and there's a heavy factual case here and they investigate a troubled me a little bit in the investigation itself they did investigate everybody there were some investigators who would have said that there was a culture of of of retaliation or incident you're thinking i think of the supervisor swi a total who mr d'anjou are called from the site and accompanied him to the office of professional responsibility to address the incident at j f k so i took it was not investigated and that's part of why mr dander admits that the investing itself was faulty that the conclusion it reached was faulty and also why the investigation itself was an adverse employment action i say my time is up and i just i just want to start on the timeline the incident happens in april of two thousand seven by november of two thousand and seven mr dandridge is interviewed about that incident and then shortly after that he also then submitted an affidavit about what happened that it's at the same time i think the affidavit came out of the interviews well right he signs an affidavit after that so that it took six months for that red happen and then six months later the investigation then kicks up right again correct and you're saying that the inference to be drawn is that the investigation was dormant and nothing would have happened but for the fact that he was served with a subpoena i think the inference for the jury to draw from the evidence or that a reasonable received the subpoena any specific displeasure was communicated there is evidence on the record however of a atmosphere that disfavor his participation in ethiopia your argument would be that this was like a warning shot to him  you know you better not be better if you drop it and that's precisely what he says happened to him there was a meeting the day after he received the subpoena where mr opie ola slams his hand on the table is hostile towards him mr de andrea says is this about the subpoena and mr o b l or refuses to answer so mr obi a mr danders testimony is there was immediate blowback based on his receipt of the subpoena evidence that they knew that he had specific evidence about that but kind make one more point about that before i don't want to short way over yet you have some time on a letter from the government morning your owners may please the court my name is steven chalk and i'm an assistant u s attorney in certain district of new york i represent the government to defend not only as i did before the district court in the proceedings below this court should affirm to grant a summary judgment in favor of the government because the plaintiff at every step of the relevant mcdonnell douglas burton shipping framework has failed to meet his minimal burden of proving a prima facie case of of retaliation and a hostile work environment leave the hostile work environment out of it because that's a separate question and in fact it doesn't seem that the district court really spent much time on that fact i don't think any timeline so that's that's that's another question  think that by the district court but in terms of this case this situation here as i understand the argument this be made by the other side is that this was kind of a pro forma routine you know we got to get rid of this case kind of situation they appoint an investigator several months afterwards then later on months later there's a there's an interview in an affidavit and then at that point nothing happens until the subpoena while you have subpoena curse and then at that point that's that's where the case from their perspective were beginning and that and the investigation kicks off all these interviews but they leave out some people that are some interviewers that are going to his direct supervisors actually which is sort of odd that might give testimony that's unfavorable to the to the investigators terms of having pre determined how they want to come out on this so that's that's where i'd like you to focus but certainly honor and i think there's two parts to that which first  timing and then second suppose that evidence of the fact that it was a defective investigation first as to the timing as much as plaintive tries to suggest there's a genuine issue of fact here as the panel was indicating earlier the record belies that there is an objective we serious incident at j f k airport in april two thousand and seven in which port authority police officers not affiliated with the government at all have to respond to an incident in which the plaintiff has  into individuals by the terminal gets shut down for a number of hours or stood at that where is the investigation after that nothing happens until certain of so that so the plaintiff himself says in his deposition in his complaint that he reports the incident and then it's the record shows  report the incident merely referred to the office fresh responsibility the record then shows that given and we went over the facts but could a reasonable jury find that the government really wasn't too concerned about th subpoena no reasonable jury can come to that conclusion and part of that is the case then gets referred to the national security investigations unit which is a separate unit in the large agency that's based wheels of bureaucracy here i don't know well the slow wheels date the subpoena right exactly so there's that this incident takes four months after the initial referral to a p r to get sent to national str ins that agent looks at the file within a month or two interviews and agent d'andrea also solicits sworn testimony from in the form of an affidavit process is that that unit still national security investigations find some minimum colorable complaint two year refers it back to the office of professional responsibility in new york and this is an april two thousand and eight still predating to protect activity and then that agent then solicits a further submission from his deposition said even the act of referring that matter in april two thousand and seven was not to retaliate which of course officially makes no sense since protect activity didn't start until two thousand and eight now and beyond that they suggested that the act of testifying is plotz activity which the government purposes of the appeal doesn't contest now an appeal there is that in an effort to try to move the window back they say no actually it's even receiving the subpoena into in april two thousand and eight that triggers it but as halls deposition if you look at the words of that of what he's saying any time you hear activity we don't want to hear they're considering that to mean a jury could even read that to mean therefore we retaliate but if you first of all most all made that model became dangerous supervisor in two thousand and ten two supervisors and two years after all this happened yet they're hanging their hat on his the statement supposedly is direct evidence of a culture of retaliation he made that answer in the context of questioning about did you know about agent d'andrea this complaint and he gave an answer that said you don't know i didn't and in fact any time it was said to supervisor we don't want to hear about it because we know that you know we're not supposed to know about it now they're saying that a jury could somehow construe that to mean as in a mission of a culture of retaliation and we submit that if you look at that testimony that is not act on appeal is d'andrea being removed as a lead agent from this one case and that occurred in two thousand and ten two years after any of the protected activity not only that  conceded as deposition that he had been spoken to two times but the very issue prior to this he conceded that any studies in his complaint i wish i could have done it faster but hey no one gets punished for this but when specifically asked about this he could not name a single individual for whom he had any kind of knowledge about whether a comparative or that was similarly i think the other side's best argument i'm not saying it was so where but if their best argument that's i think significant you know i think it is your honor if i can add two things about that one to buttress that argument they rely on this idea that the investigation was somehow defective on its face and put in reliance of that all they do is cite to this declaration not just the first first year but and this goes to the point of the speed of bureaucratic investigations perhaps but over a steady investigation over two to three years each of the two individuals who were pulled over that day were interviewed in detail and those the district court properly dismissed the hostile work environment clean as well because we're dealing with retaliatory hostile work environment so a hostile work environment claim is predicated on identifying a protected status or class under title seven in a retaliatory context that means that you were subjected to it you know there's nothing done by the district court what you want to use this court there are pieces of evidence there you know you would argue that they're minor the little petty slights that he had the parking space and and such but  full record it in front of you in fact and usually you have all the different deposition transcripts in this case in front of you no discussion of the elements of a hostile work environment where there's severe pervasive conduct we would have to be engaged we would have to engage in that retaliation if the district court thoroughly debunked that case on on several layers of the prima facie case and on causation well it's also a fact that in order to bring a hostile work environment claim you have to establish that the conditions of employment were so altered by what was taking place that is to effectively be another ad for action right absolutely and the only two adverse actions complained of before your honor's is the  now they can rely on the twenty five other incidents that they relied on the district court as background evidence but none of that raises anywhere close to the level of a materially actionable incident that's why your honor should have comfort or be secure in saying that you can review this because everything that plaintiff can point to as the source of this hostile work environment is properly before you and none of that from complaining about having to work five days in a row having work early mornings on investigations being criticized because you left the government car impounded and left on vacation instead of getting it out instead all those which she claims are the incidence of hostile work environment all clear on the record that those not rise to the level of a minimal prima f thank you are at i'd like to start where mr charge him finished which is the district courts suppose a conclusion that there was no prima facie case established here the district court made two legal conclusions the first that there was no evidence of knowledge and the second that mr d n c i had failed rebut the legitimate non retaliatory justification put forward by the government both of those legal holdings are indefensible under this court's president gordon one thousand years ago squarely foreclosed as both of those there is no requirement to show knowledge beyond general corporate knowledge and there are multiple ways of proving causation in a retaliation case and one of the and while one of them is to disprove the the legitimate n retaliatory just occasion put forward by the defendant that's not a requirement in any way and yet the district court faulted mr vandeleur for not doing that and so i think in addition to not addressing the hostile work environment claimant all the district courts reasoning doesn't even support the entry of judgment in favor of the government here and so this court would have to start from scratch on both claims in order to affirm you agree that the protected that was the are you still ar the protected that was in receipt of is a pita paragraph thirty of the short paragraph thirty of the complaint under the heading of engaging in protected activity says there are two sentences in the paragraph it says he received this a piano and he testified i  think it's so he had a choice of not receiving the subpoena i don't think he had a choice of not receiving the subpoena but the expectation when someone receives the subpoena is that they're going to testify it is prohibited to dissuade someone from testifying and he testified within it so sorry that's certainly not retaliation i guess what i'm only be the testimony retaliated against for the testimony or the expected  think so so why does it make any sense at all why is it plausible that he's being retaliated against for receiving a subpoena that he's not free to ignore because the government i mean given the culture of disfavoring participation and  actively he could go there he could change his story i don't know what's in the government's we're hearing on the record to suggest that he was encouraged to change his story or to otherwise not cooperate with the subpoena i think the inference that the jury could draw is that given the climate of disfavoring participation in each cases and i'd like to just mention that quickly given the climate engaging in retaliatory activities such as this retaliatory investigation is a way of dissuading people who have any cases engaged in that elicited the retaliation was the receipt of a subpoena and his testifying which is the necessary conclusion of participating of receiving the subpoena i think that recognizes that receiving a subpoena is protected i'm not aware of one this issue was also argued below that was the receipt of the subpoena was the protected activity i honestly couldn't tell you i think that the the argument climate i think urge the court to look at the language of hall's testimony in a six fifty three i don't think the government is being fair to its treatment of that testimony with respect to norman you go to there is no requirement that evidence presented on s not be hearsay it near only needs to be presented in a form that could be admissible at trial norman could have been called as a witness this court has recognized that the amendments to rule fifty six and twenty fifteen explicitly recognised that you go to gave first person testimony based on his experience in the department that he believed that this was a tele tory thank you