douglas as apply it it's useful evidence in the mcdonnell douglas context but i don't think it's worth putting a lot of energy into the question of whether you can win on it alone i mean in the original hiring doesn't seem to connect up to anything and the sucky thing does connect up perhaps more than you'll even argue but it's it doesn't it wasn't in the hiring and he didn't even say i'm there fire you and because we arrange all smith  says that he was saying it to him an earlier point so you have a pretty good case but but to stand directly on it is necessary and it's not going to work very well so i rather go until the other there was a violation of policy and then you come back and to say no those they said that that was pretext so i think we have to focus on what evidence you have a pretext that they really are your climb for discrimination but it doesn't tie it to this incident that occurred which is understanding record was videotaped and there were numerous statements from the various employees who were involved so mr saskia concluded there was a violation of the the policy the wal mart policy on detaining suspected shoplifters and so i i think what you need to do is show us how mr sask is decision that there  where he's cut all came in mr will the cat's paw ok so this is interesting your theory is that although mr saskia had been transferred to another region no longer worked or supervised the than speculative arguments in the brief that they must have spoken to each other or this is how companies operate can you point to anything in the record that would substantiate that mr assad ski ever spoke to miss naval or attempted in any way to influence  evidence that they did talk when she st came on about this person in particular i think but leaving that aside i know that this is what i don't understand it as i understand the the  policy he couldn't have gotten fired except for the way he was st of all he was he was only disciplined the nd time for not reporting that's what the form says not just what i told him but what the official forms us and as i understand it the only reason it was only because he already had a rd level exactly  policy says that wal mart can advance a person through more than one level of coaching for an incident so i agree with the premise of judge present question that when he was terminated for the nd policy violation of what wal mart characterize policy violation that happened because he'd already been put on a rd coaching but the policy states that wal mart could place a monitor coaching based on a policy violation and that st incident involved is suspected shoplifter who becomes violent and mr moran does not dispute that he held on to her propelled her down the corridor took her into a locked room and essentially sat on her held her down and so it seems reasonable for wal mart to conclude is as they say in the record that that was sufficient for a rd coaching but then mr smith is gone and i believe judge resign is correct that mr saucy spoke to mission able when she came on because she asked him if he conducted an investigation because mr smith claimed that he did not and she's still he said that he did and that was the end of it but there's nothing that ever suggest they spoke again about mr moran yes one of the two thousand  associates and also there was another suspect in that room so you're arguing essentially that the supervisors were incorrect that his interpretation of his actions was really and that he could do the things that he did when  suspect or a suspected shoplifter became violent but isn't there a case law that says that's not sufficient that when you're looking at pretext the issue is and in particular with an alleged violation of policy the issue is whether the the employer he's an a person you're offering to for expert opinion who's going to comment on whether wal mart was correct or not how does that change the law that it's whether they honestly believe the reason not whether they're correct so th can prove that somebody is subject to mind within the year one or another well there's there's all sorts of things you can argue and you've already argued one of them which is suspicious timing another factor would be treating other employees female employees and against all the conclusion that mr smith made they were decided to coach him and not only to coach him for a person who has multiple years of experience as a trainer for others as a protection unit individual but also you know the eccentric but they didn't terminate him for a perp formants they didn't say he's not showing up citing his job is not training others if they determine they coached him for a policy violation and then ultimately terminated for a policy violation and a person could have a policy violation even if they'd been previously next exemplary employees and i correct yes there are but they put him on the verge from the a p nine violation in the report and what he told them when he was fired both was that he was fired for not reporting he was not fired he was coached for not any sense because it does not it does not belong never said any of that will we have said that he came in and he said we investigated and void of under the policy if you're known he does not have to have individually eyesight on the sausage and they never and that isn't what they wrote him up for probably for that reason exactly as much that isn't the reason that they fired him that they coached him either and according to  was mr moran and did he ever any point not understand that he was supposed to keep visual contact with a suspected shoplifter if he is the only a p a responsible for investigation yes however when person didn't do that right so when they took him back in he didn't have any items that he hadn't paid for but where did mr moron have any confirmation even though he didn't have visual obs or contact with the person that that had happened a p o nine violations integrity not reporting something like that right so that was the reason for the coaching right to terminate and coaching which led to the terminations right somehow as i understand what happened this point it could be that they put in the low thing in the form imo so that interest to what wants to dinamo month the that maybe true and not at the end of the day even if the actual policy violation didn't occur when you terminate someone that alone isn't enough for but mr moran would also have to bring forth evidence of discriminatory intent it's not enough to say the policy violation was in correctly coded or you know the reason stated was not consistent with what how often there needs to be something more than not in order to beat the burden of pre tax so shannon snivel as i said at the outset there is no evidence of discriminatory intent on her part the only way that she can be found to have any have acted with any such intent would be through this cat's paw theory and for the have to establish that the description of the supervisor with discriminatory intent in this case was austine scheibel would have been the catspaw for was asking in this case you have to prove that mr was carried out an act with discriminatory intent intended to result in the adverse action that happened which is the terminations so we have to go back to the ok but that's because you're calling it a cat's paw theory i mean the only well i'm calling it a simple proximate cause that he could not have gotten fired when he got fired but for this earlier event therefore if the earlier event was discriminatory exactly that's enough yes that's what i'm saying that it doesn't have to be discriminatory assent that he meant for him to get fired when he got fired he was human there and like you do you have to prove the district court did and what that record supports is that if we assume that the only way we can find this terminations discriminatory is if we find that the rd written coaching in july was discriminatory we have to go through the analysis on the rd written coaching ok so they've argued that that direct evidence of discrimination i think that the court has already devised but that's unlikely there is no there is some direct evidence of animists so there is evidence that mr was asking made a statement at some point to get rid of the several according to smith several times ok so many other employees as well but direct evidence of discrimination is evidence that without any influence what so ever proves discrimination so analysis on that rd written coaching so we have we assume a crime if they should cases the stablished by the fact that there's been discriminatory remarks by mr was aussie so now we get to wal mart's legitimate business reason wal mart has evidence submitted evidence that reason is discrimination all he has is these comments made at some point about get rid of that old man but when you put that up against the fact that nobody know how smith's whole story about what happened well the fact that  smith thinks that the is so many things but what they did happen was that he was asked to do the investigation and he had some expertise of his own he concluded that there was no violation and although i cannot find the statement that was report he dictated to arnold how to change his report different from what he actually found and he told him that he should coaching to the maximum degree possible regardless of my findings i mean that some evidence is pretty good evidence unusually so somebody was right there however mr was off they terminated the twenty two year old in the same instance mr w your strongest evidence for sure but that's for the jury i think that ultimately the burden of pretext is such that it's not sufficient to say well busy there is some question of which way the policy could have gone gone i think the evidence supports that mr was also his conclusion that there was a violation of policy is reasonable there is there is no disputing that mr moran physically engaged with the suspect and there's no disputing that that is a violation of policy there is and it's a good policy right so the fact that mr smith is now testifying that he didn't see it as a violation of policy well that's not the same as oh we've we are going to you know discipline you for you know going into this file cabinet you're not supposed to go into it on the evidence shows you never go into the file cabinet that's obviously an egregious inconsistency because you didn't actually do the thing you're getting terminated for you're getting coached for in this situation we have a person who was coached for physically engaging a suspect and there is  evidence video evidence in fact and an admission that he did it so the fact that mr smith sort of has a different interpretation of the policy isn't enough to completely undercut wal mart's legitimate business reasons add to that the fact that mr was off he was well  you get rid of it he had the opportunity and he didn't that's the point is he he made comments if he made these comments about him being an old man that's that's enough for the prime afoul you certainly said enough to be a lot easier the other associate involved who was much younger twenty two years old was actually terminated for the same instance i think it's if you you can't overcome it just by some comments that were made in an unknown time somewhat outrageous given the fact that this man is what learning thirteen dollars an hour and this represents a quarter of his yearly income and the district court coley failed to consider the economic disparity between the court mom art and this individual and also seem not to understand a significant chilling effect on the civil rights future civil rights plaintiffs in this case well you know that obviously the district court you know it's an abuse of discretion standard and i mean if you think if he commits an error of law if i example be i don't see anything that suggests that the district court has to rely on fi factors are more or that there's an exhaustive test and each factor is mandatory  so it would appear the district work new the law and applied it and if this quick were to disagree and some of those factors we would be substituting our judgment for the district courts which is not a review for an abuse of discretion right