we wish we could be together with you in person this morning but that has not yet arrived i for one and the lines of be here with my colleagues judge new some and judge branch and we're looking forward to hearing your cases for those of you who are not familiar with our traffic like system for the time keeping the countdown on the clock will be in green until two minutes before your time as it is to expire and then it will turn yellow red and we count on our advocates to want things up on when the car turns red with that unless i'm forgetting something i think we're ready for the st case of the day and that is mrs luke ursus the university health analysis to determine a proper comparison are in the present that age discrimination is about actual knowledge and really can not construct with knowledge and assume intent or speculation the supreme court held that actual knowledge means when a person is point to are either or either being supervised by someone else who had a different kind of grace period policy or if supervised by the same person had a different disciplinary history or the like so who exactly are they compare others that you're pointing  their own comparatives you've pointed to who were being supervised by someone else no  subject to coworker complaints were they suspected of poll supplying time records i mean those are the kind of the you know some of the relevant criteria that we have in this case  thank you can go ahead thank you so much ok case and then the district court again considered to compare her evidence as a pretext stage so can you talk me through what you are alleging that the district court did wrong regarding your university hospital only offer one reason why i was terminated and that was due to attendance at the process of terminations biggie for wrote the recommendation so she had to once they disapprove the recommendation of terminations they recommended me for termination here on morning may it please the court my name is jonathan martin and i represent university health services inc the employer in this matter will respectfully ask that the court affirm the ruling of the united states district court for the southern district of georgia that university health systems did not discriminate against china from ocular when it terminated her employment due to attendance we do so for three reasons st mislead luke was uniquely situated there are no other employee employees regarding her attendance issues for years miss ford had numerous opportunities to charm that mislead for her attendance in accordance with hospital policy but she always gave misleading another chance including a nd final written warning within twelve months in two thousand and fifteen when miss forward could have terminated miss luke miss for suspicion that miss luke falsified her time card adjustment changed everything rd visit a mason and human resources who is also african american conduct an independent investigation into the recommendation for terminations for attendance and time card foster cation miss mason was unable to substantiate the t but mr mason approved determination based on missed loops excessive tardiness following her rd final written warning there's no dispute about the facts the only dispute in this case is about the law december the st two thousand and six jane stated i have been here since four am and i'm still here re monica's continuously late and it is not fair to me to be here all day and practically all night i need rest to the next day miss symons elaborated it is not fair to me that this continuous tardiness being left on my back no consideration i'm here fourteen hours and she was late but she is always like this set in motion the terminations of plaintiff appellant remark to luke for her entire career as an employee of university hospital where monika luke was late for work time and time again for her attendance problems planner for save the total of seven warnings including two final written warning and a nd final written warning within twelve m miss luke's final or last final written morning which was issued on september the th two thousand and sixteen provided this is been a habitual and serious problem and improvement has not been seen therefore the next occurrence of authority will result in immediate termination according to miss luke's attendance records she was tardy on several occasions there after specifically terminated and finally on december the th miss lucy was late again with no reason again mr ford did not take any action it was not until miss simmons complained about plaintiff and her tardiness on december the st that miss ford began to review both miss luke's actual attendance records as well as her time card adjustment ford concluded that miss luke not only violated her final written warning but also that she falsifier time sheet specifically the time sheet adjustment which is done by employees who failed to clock in indicated that miss luke arrived at six pm however miss ford significantly vicki forward initiated the terminations of a caucasian employee angela thompson for poor attendance around the same time from like appellant angela thomas and was tardy on multiple occasions after receiving a final written warning and she was also on a nd final written warning than twelve months unlike miss luke miss thomason was terminated for being tardy merely two times following her final written warning miss luke in contrast had for unexcused absences or tardies prior to the initiation of germination and most importantly her terminations was predicated on the top court adjustment  it's a two part process the individual supervisor does not have the unilateral authority to terminate a bully then make a determination recommendation and then human resources conducts than an independent investigation mr mason in her the terminations based on her agenda it's john don't believe that is inconsistent your honor in fact if anything we would submit to the court that it is consistent than this luke was treated fairly because the allegation made by the supervisor was ultimately vetted through their own internal administrative process mr martin you mentioned angela additional as a final written and in another instance of being tardy results in germination and so there are a number of people who are the beneficiary of you know management who was tolerant have continued to have you know tardiness but for the fact that her coworker went and complained to management and that triggered everything as you can see from former attendance records she had you know three instances of being tardy after her final written mourning and if miss ford was out to get her based on her race which is your contention that she had numerous opportunities to do so it really wasn't until a made a simmons brought miss luke's attendants to the forefront with her scathing email about being treated unfairly that the supervisor began to investigate not only miss luke's tardiness but also had the suspicion that she had falsified her time card because the adjustment did not reflect what the supervisor understood from reviewing the time card the entry as well as reviewing the email from violation of the hospital's attendance policy as we mentioned it is our position that miss luke has no compare jer's the individuals that she mentions are not similarly situated in all material respects as set forth in lewis versus city of union city because there is a key distinction and the key distinction is this none of the comparative words that miss luke sets forth either had another employee who complained to management about their attendance and none of those individuals were suspected of card falsification or time card fraud we submit is a matter of law that provided practitioners guidance what it means to be similarly situated and there are four criteria number one they must have engaged in the same basic conduct or misconduct as plaintiff number two they must be subject to the same policy or guideline number three to have the same supervisor and number four they must share the plan of some form or disciplinary history is our position that mrs loop is unique because none of her  in gauged in the same conduct and none of them are suspected of engaging in time car falsification and none of them share the same disciplinary history as plaintiff and that none of them had co workers who complained we submit that that distinguishes miss look in other words as lewis pointed out this is a classic case of treating different cases differently which is not discriminatory but there's more even if the finest comparative evidence was sufficient for a promise face a case which the district court the same is insufficient to show pretext your honor i