dispute is that your pace dong a starting salary of eight and five thousand dollars which he protested and that is salary will substantially lower than that of at least one other harini who was the record show of the protests of the beginning salary was and issue between he and the company from the inception of his employment is that is that something that we can discover from the record  president didn't get instead made was initially ninety five thousand and not eighty five thousand doesn't that all go away as a matter of contract formation when he accepts what he actually receives  salary that they had discussed in the interview and that he understood what that was going to be paid but yes he did ultimately accept the eighty five thousand dollars and he went on to be promoted stone and stone is not challenging that he's only challenging the comparative rest to brad ritter and the reason is because ritter did not have the five years of  and the other feller ritter who had only last a little less than two years experience moving on there was a issue about whether or not a claim that  mr stone did not get the spot bonus as compensation for the period when he was working both as a sales rep and that's the old position and he was working as a l s e that period for several months he lived in florida he came to missouri he was effectively required to work both positions and he didn't get a spot bonus now he'll states that there was another person that didn't get a spot bonus as well but there's no that he was create a lower salary because of his race that count one should be left to the charas fact counsel was the person getting the ninety five thousand dollars in an area that has a much higher cost of living or not what does the record show on that mcgraw hill did not substantiate that they claim that there was a difference in the territory with respect to the higher cost of living they did not offer any evidence to support  including is why mr stone in fact had a long opinion at mcgraw hill than than this while while she came in in july august or so or twenty if you add the competitor time does it make the experience look right to get more ninety five plus years and this is what he had been told not only was it in the posting but mr stone had been told you know by human resources and so on that this was the experience i was needed so that's the point there with is an incident in terms of the house environment claim where are there any other language issues other than the one overheard where there are any statements made directly to the point of as opposed to over heard being made to a third party no there was an instance where manager while the did report to heal security that she felt threatened there was no basis for call those are those are those don't particularly deal with his color i was just wondering or are his his race what what other indicators were there of animist towards him strictly based on his race direct evidence it would have been the one statement about the that i just i referred to about him being hired and so forth just that one statements was a direct statement a direct anim course of what mr stone was expected to do and what the other consoles were expected to do there's just a big difference there and you just can't get around the difference and we think that is such that  expectations according to the job description and that's in the appendix and according to what he was required to do as compared to his counterparts other district court notes that there is a that discrimination was not a motivating factor if the same person hired and fired down within a relatively short period of time and they did this recourse i saw a case on that ever and i want to point out to this court that disagree with the reasons for his terminations for his salary and his overall experience at mcgraw hill but he fails to connect that in any way to his race he makes multiple allegations of disparate treatment between himself and others at mcgraw hill but he doesn't connect that in any way to it being because of his race doesn't it in some way connected to his race when the person that hired him makes a statement indicating they wish they hadn't hardened and specifically references his race well that was one stray remark and as this court has held in the past such a remark standing on its own is insufficient i don't think one remark that by the way was not made to him it's something he claimed he overheard but it was one remark that was made that matters at this stage we pretty much accepting that's out of the allegations that we take it is true i understand that but even if true it is again it is just one remark that this court has held is insufficient to establish that his at that the atmosphere is environment was it certainly wouldn't under existing president prove a hostile work environment there's no doubt that the precedents wouldn't wouldn't support that but doesn't support the potential of the race animists in the motive to terminate it i don't believe so your honor it's it was again one comment that wasn't made to him and the lower court determined that there were legitimate nondiscriminatory reasons with no indication that his race was involved sounds like you've said you've skipped two or three stages doesn't he on and he was paid more than or at least the same as three of them all three of whom were why he doesn't dispute one of the white individuals who made more than him mr scanlon and with respect to mr r er he claims that he has more experience but the reality is he was hired mr ritter was hired from a competitor which required additional pay i hear you're arguing how rigorous is the standard at the prime  aphasia case and you're arguing it's very rigorous that the privatization stage well it's rigorous for him to point out somebody that is similarly situated to him that's the ninety five thousand dollar person not doing the same work and gets paid more money who who was but but was hired from a competitor to work in a different territory three with different experience at the competitor he had the individual mr rich saying they weren't doing the same job they were doing the same job but you can pay different people different amounts nondiscriminatory reason you're kind of at the pretext sort of stage you're kind of saying well they got kind of a prime a fish but the now let's talk about whether it's really a pretext well no because in order to establish a  case he has to show that there were similarly situated people in all respects who were treated more favorably than him and not in the protected class my argument would be that mr ritter was not similarly situated yes he did perform the same job but he came into that job at it with a different background a different experience and he was hired from a competitor and my point is that that would separate him from m stone and explain why he was paid differently was the ninety five thousand dollars person in a different cost of living area he said in the record or not well what is in the record is he was in columbus ohio and that  determined that that was a different cost of living quite frankly your honor i don't know what the cost i don't know but i mean i'm talking about what the record shop i understand and whether you put it in the record the other side did anything about it it is on the record that he worked at in columbus ohio and then the five thousand person work st louis yes the eighty five thousand st louis and columbus direct percinet the other issue that he raises with respect to compensation is the spot bonus but again he has been identified anyone who even received a spot bonus let alone anyone who did who was similarly situated within outside the protected class and therefore he hasn't identified anyone who is similarly situated with respect to the spot bonus and receive that bonus with respect to the hostile work environment claim as your honor pointed out  he only identifies one comment that has anything to do with race and that is insufficient to establish a hostile work environment claim because it doesn't establish that the conduct th while while offensive is not sufficient to establish a hostile work environment in the harris case wasn't by a decision maker do you recall i was the utterance of the epithet by a decision maker as opposed to somebody that isn't really the decision i don't recall that i don't either that's why it apologized but i but i do believe that even if it is by a decision maker particularly in these circumstances where it was not made directly to mr stone that it would be insufficient and when you when you couple that with the other incidents that he claims occurred that have no element of any racial animus that the things that he's complaining about he can establish that those are sufficient to establish a hostile work environment claim because there's simply no racial component to them other than the one you agree one epithet by decision maker at the right time say the firing moment that that be a pretty good case perhaps perhaps perhaps obviously this wasn't the situation but i understand what you're driving at but but instead with respect to his discharge the situation was that he had been spoken to multiple times from january two thousand and twelve until his terminations and it's well documented what his performance issues were including lateness including other sales reps not wanting to work with him including his responsiveness and his organization and he was spoken to on multiple occasions and our position is that those are legitimate nondiscriminatory reasons to terminate him separate and apart from any alleged comment that ms wilde so you're saying the the record is undisputed that there's documentation for the alleged deficiencies for the absences and is that a matter of record in the record there are multiple e mails from ms wilde to mr sloan explaining to him the problems that he's having there's a written warning which explicitly lays out the various performance or something i said absences but i think it sarti were those documented as to when and what frequency they occurred there documented in the written warning and in some of the what ms wilde's did is she read e mail mr stone after they spoke and recap the conversation that they had and in those e mails she she identifies lateness as one of the issues but it's not detail i'm sorry but it's not i don't believe there's anything in the record that specifically says are late on this day you missed this meeting i recall one meeting where one of the sales reps complained that he was late in showing up for a campus visit but i don't i don't believe there's any specific chart or anything like that that lays out every time that he was it was hard that once we get past that legitimate nondiscriminatory reason we go into pretax and he hasn't identified anything that would i doubt that that would explain how race is connected to the discharge decision he he disagrees clearly with the performance issues and he and he argues about what whether he did or did not do the things that he was faulted for but he hasn't given any reason why that mcgraw hill didn't believe honestly believe that he had these issues and he also doesn't provide any connection between those issues and his race he simply says that he disagrees with them he identified anyone who is similarly situated to him which includes has the same performance issues that he had at the time that he was was discharged and so our position is that he has not identified any causal connection to his to his race such that the criticisms were legitimate and he hasn't been able to establish a pretext was the termination it was yes and again he attributes that mr stone attributes that to her being aggressive and he testified that he had seen her do that with other people he doesn't give any explanation that  it was due to race and his net way gives an accused of making any racial comments whatsoever and i also want to point out with respect to the ms wild comment that ms wilde's was the individual who promoted  mr mr stone about seven months earlier and so there is an inference from that nondiscrimination that pretty much wiped out by her later comment because that the later comment can be interpreted i'm going to fix the mistake comment you wished you'd never done it based on the person's race well i think what what her promoting him to begin with shows is that is that she wasn't did not have racial animus towards him or she wouldn't have hired him to begin with and i think what what that shows is baby it calls into question whether she ever made the comment to begin with but it certainly sometimes corporations and companies are individuals for reasons that that supervisor her reasons they've been instructed to have been given incentives to do so well there's no indication on this record that ms wilde's was influenced by her superiors or any want to any any type  of policy or anything like that to hire him despite her not wanting to there's there's absolutely no evidence in the record of that and so i would argue that that her hiring him or promoting him shows that she didn't have any discriminatory animists towards him and it it would seem strange that someone who who at that point didn't in september of two thousand and eleven suddenly in april of two thousand and twelve is firing him simply because  he paid the price for it and in fact by being disturbed correct and there's no basis to think that that was motivated by race i don't have anything further unless anybody has any questions for thank you counsel thank you i mean we look at the actual evidence here for instance they say on this issue about being late to meetings with sales reps i mean no evidence in this record substantiates that stone has i'm sorry dear i'm having trouble hearing you from two people not just one or two people ms world walt and mr breaux she that he was never late for any meetings with him i thought the remailer to him that said that the right was me i thought there were e mails to him that said he was affidavit is in the file one last thing i think is very important is that mr stone this war is the expectations for him being different he was required to work with sales reps for days a week to five that was before before they would be written warning was issued six months later in march so from the very beginning the expectations for  expectations from the beginning for him were so different from all of us he has compared to ours and i think the district court missed that i think the district court miss ray and the evidence with spector on all of their working conditions not only just the statement when we started the record all right thank you we thank both sides of the argument the case is now submitted