followed that argument but my question really is is it really fair to say that at any point if the decision makers sit down they make a decision and then at the end of that decision somebody asked the questions are we sure that we are not arguing essentially that it's that it is never proper when those policy is violated to treat two people differently because the manner in which the violation took place is different testimony came out after the termination in the union grievance process in my remembering that properly i mean the decision was made i think my understanding is alina thought it did not hit her that lab coat did not hit her at the time really go to whether or not the initial decision to terminate was based on race we believe that he was based on race in the nature of this is going to track because that's where it started because by not judging by rote there's no way you're going to  terminations right correct all right and if you elect to view it through a prism of seriousness right then you say that well the the throwing the lab coats which which we believe did not hit  mrs fyne later that that that that is less serious than the push which we believe because physical contact is a more serious offense now even if that turns out to be a mistaken belief it's not a pretext for race right i mean and so i'm just having a hard time with the idea that that under your analysis you really are arguing that there's just no way that goes into the seriousness of the conduct ever  you i'm going to kick your butt and then the other employee pulls out a gun it seems to me that you shouldn't necessarily have to treat those two people equally under the policy right because you look at seriousness right right you're wrong saying that they actually were charged with doing the same thing that's not the charge you're saying the quote had no right to substitute its own notions or what the charges should have been for what they actually were correct thank you  court correctly determined that find later could not establish that the reason for her terminations was pretext for race discrimination more specifically the district court correctly concluded that find later could not show that a line  failed to follow its own policy or that similarly situated employee was treated differently for this reason we respectfully request that the court affirm the decision of the district court i want to focus the court this morning on two main issues similarly situated issue and the policy issue i don't find later cannot show pretext because she was not a miller least situated to her coworker leo broke the core of and this court has consistently noted that at the pretext stage a plaintiff must show that they are similarly situated in relevant respects and that both employees engaged in the same conduct without any distinguishing circumstances and this court also has repeatedly noted that this burden is rigorous under eight circuit precedent a line a reasonably between an employee who through a lab coat and an employee who physically shot someone else several of the court's cases make clear that a line was permitted to exercise its business discretion and it business judgment in this way the edwards versus highland dairy case in two thousand and seventeen which was cited by the district court and that case the court the employer was permitted to distinguish between an employee who left work and then called in to have someone clock out for him and another employee who just forgot to clock out in the ward versus p and g case from one thousand nine hundred and seven this court said that an employer was permitted to distinguish between one employee who grabs someone's finger and another employee who slapped someone in the arm in the wheel or a case from two thousand and fourteen which i discussed at length with the district court as reflected in the transcript of an employee excuse me an employer was permitted to distinguish between an employee who made a lewd gesture and an employee who actually touched someone and finally in the rick's case the employer was permitted to distinguish between two employees both of whom were guilty of violating the no felony rule because one employee had a drug possession felony and the other employee had a false imprisonment felony charge don't you think the distinguishing factor here though that makes this case we're difficult is that a line a had a very strict workplace policy that it had a zero tolerance for violence and threats of violence and it seems that both employees violated that policy and yet only the black employee was terminated correct term both employees did violate the text of that policy but as this court's questioning was was beginning to  zero tolerance policy does not mean that the penalty is exactly the same but the company didn't even apply the policy correct the company did not but we know in the record that the company when ask questions about whether mr fein later excuse me miss bruce conduct would have violated that policy the company acknowledged yes it did but we didn't believe that the behavior was the same and most importantly the policy doesn't require to treat it the same we know from the decision makers testimony in the record and that's at the appendix at pages forty and forty five that it just says you will be subject to corrective action it doesn't say what the level of corrective action must be and that's the nd point in my argument this morning the state on the issue of the policy right finally entire argument hinges on a misapprehension but the policy requires the imposition of the same penalty no matter how the policy is violated but that is not what the record shows number one the policy itself doesn't say that and the undisputed testimony from a line of human resources vice president and the decision maker in this case is that of workplace violence policy allows a line a the flexibility to determine the appropriate level of corrective action it does not require a one size fits all punishment and if we look at page fifty six of the appendix that's where we will note that the policy itself and the other thing i would note is that the policy itself does not say that it must be applied in all instances in which it is violated so there is no facial requirement that a line the district court correctly noted that miss baruch was not charged with violating the workplace violence policy but the district court also correctly noted that it didn't matter because a line it retains the discretion to two different violations differently and that's exactly what it did she hear but more importantly than that even if a line is discretionary decision not to reference the workplace violence versus the university of arkansas and again in the shop hauser vs u p s case which is from two thousand and fifteen notes that a violation of policy is not always enough to show pretext it notes that an employer  how to run its business including whether or not to follow a policy and it notes that there have to be some facts that show that it terminations is more likely motivated by race fyne later simply has no such facts in this case is finally to rest solely on the distinction between the judgement that a line a made for an employee who pushed someone an employee who threw a lab coat and judge erickson you correctly focused on the fact that a line in its investigation monitor make sure it was making the right decision for the right reasons and considered race in the investigation but not in the disciplinary decision it considered race to ensure the non existence of racial discrimination that is not a violation of the law and that is not racist criminalization find later was terminated because she pushed a coworker she can't show that this explanation is pretext for race discrimination and the court should affirm summary judgment was there any questions