year of two thousand and fourteen two thousand and fifteen in which appellant plays a serious or vents that are more than petty and slight inconveniences for examples she was given a new legal schedule in which she had to teach four consecutive into computers from her home that was holding useable computers for three years that she couldn't use a she wasn't given equipment obviously all the other teachers were given that equipment and i found that shocking because how can you teach a photography class without morning your honor julie steiner the attorney for the at least first with respect to the age discrimination claim the district court probably dismissed it on the ground that it was not mentioned or discussed or alleged in her c complaint therefore she did not administratively exhaust an age discrimination claim aside from the fact that she did not check off age if you read through the entire and and i'm she only mentions the initial complaints for purposes of explaining why she was retaliated against but she not once mentions age discrimination she doesn't even really mention age at all other than to say how old she was and so there was absolutely no reason for the c to investigate further into any allegations of a discrimination because it was completely silent as to that in the e e o c complaint and therefore having failed to administratively exhaust that claim before the agency it was it is therefore barred here in in the district court and therefore in this court with respect to her retaliation claim the plaintiff is not claiming that the retaliatory trigger is or the the protected activity trigger is the date of the dismissal of the claim and that simply cannot that this court and other courts have clearly articulated that the date of the protected activity is the date of filing the complaint that's where the affirmative act that the plaintiff is undertaking to complain about discrimination and that's it starts and that is what that is the trigger date yes and i be leave it should end then is what i believe if we can do it again it has to be something affirmative that the plaintiff is undertaking so we have an entire case and yes that we depositions yes and we're still mad at you because you're continuing to litigate that matter all year and we're going to do a lot of bad things to you during that year isn't that retaliation it's the retaliation though for the the initial act of making the complaint not everything that under the now we absolutely it will be an ongoing situation you need to draw a line and say what was the what was the reason the what the pla alleging discrimination and how because she filed a complaint the lawsuit of course will continue but it's because you filed the complaint and that's the date that triggers read the retaliatory why don't all a verse actions during  again it's because it's the initial act it's what she has done it's not the discovery that takes place it's the initial it needs to be something that the plaintiffs has done herself to complain and it was the act of filing the complaint and she did that and that was in december of two thousand and eleven so therefore after that her allegations from august two thousand and thirteen fourteen fifteen these are five eight month year gaps that simply cannot be tempore all you have in this case which is there's no direct evidence of discrimination no starker routing was not only six months after she filed a lawsuit yes and this and the supreme court has sided to a new numerous cases that say even three three months forget four months is too small it is too small of a too large of a gap what the but the key here is that there's no direct evidence of discrimination there's also no indirect evidence of discrimination looking at other employees so you're only relying on temp oral proximity which is what plaintiff is trying to do here that tempore proximity must be extremely close and we have gaps of months and of years in the rating system if you get rid of  may why wouldn't she filed in december in the regular course of the review system she gets her radio on satisfactory and why should that have happened before if it's not a cycle i'd there was nothing in the record that shows what that cycle is i don't know what transpired between she could have been monitored excessively i don't know there's nothing to us here on this record to say that the only opportunity for her for her you writing was that period of time so we don't know what the system was in the school system the system in that at that time so i can't speak to that your honor i do know however that when you look at the december two thousand eleven complaint things that occurred there after and she's alleging numerous things from spring of two thousand and twelve june august of thirteen fourteen fifteen to fart to attenuate around and in a situation where there's absolutely no direct evidence of discrimination to allow this to be held to be discriminatory actually retaliatory animists why would we think that an employer retaliates not only because you bring a suit because pursues you continue and we're going to and we're going to let all the other employees around here know we don't like that so we're going to retaliate and send a warning but again there still needs to be done a point this court or any any body can pick a date and say that's the date that triggers where where it is that they file a suit and they keep going certainly if the suit is and six months eight months or a year later they can't come in four years after that and say what you did to me yesterday is because of that a lawsuit why would the employer be charged with retaliation for adverse action during the loss i think you are a lawsuit will continue and so everything that an employer does cannot be deemed because you just had a discovery action or because you just filed a motion to dismiss us and we don't like that and we want all the other people around here to know we don't like the woman is litigating because she filed the lawsuit that's the that's the nature of a lawsuit you're going to litigate so it's the act of doing the complaint it's the act of saying you discriminate against how also she going to also she going to pursue her complaint if not to litigate i'm not doubting that that i'm wondering if other things yes your honor i we argue that there is no case law that suggests that it's  the the entire action that the ongoing act of litigating it's the filing of the complaint that's what the case law has that this is at this juncture your honor so we are relying solely on the of the december two thousand and eleven date to be the date of her argument that there were these post filing retaliatory act the temporal proximity argument you're on it's still too late your honor if if it's the truth the two thousand and eleven allegations are still five to eight months after the filing of her complaint and the court there is and there are numerous cases that we cite in our in our brief that suggest that that is too long of a time when you are relying solely on temp or proximity as the retaliation claim passing not for a moment if they are serious enough you're saying they don't count because they're too far in time from the filing of the suit though they are during the and you was correct your honor and if for measuring the time is the filing of the lawsuit because otherwise if you have two or three meritless lawsuits such as your client his hand and their litigated of repute of years then every every grievance is made from retaliation claim here the access to the toilet all of this stuff comes rolling into federal court and it never ends correct while you're out there she also has another argument in my brief address in correct that the temporal proximity goes out the window if the entire pendency of a lawsuit is deemed to be a period sufficient for bringing a retaliation claim just because a lawsuit is still pending in this case i will say no your honor because she has a thought i didn't ask about this case i'm asking a general question i'm saying retaliate i'm saying that the limitation on proximity in time goes out the window if the entire pendency of a lawsuit is deemed to be the the the a continuing