Plaintiffs only reported to these officials after months of efforts to report within JTSI and directly to Mr. Hayashi proved fruitless and received no adequate investigation. Opposition Exh. 1 at ¶¶ 18-21; Motion CSF at ¶ 20; Motion Exh. 0 at 11. Defendant JTSI cannot now claim that Plaintiffs violated the DFAR provision when any outside reporting by Plaintiffs may have been due to Defendant JTSI’s failure to act. Second, the explanation that Plaintiffs’ violation of the DFAR regulation was grounds for termination still relies on Plaintiffs’ protected conduct as the basis for that termination. An employer cannot argue that the protected conduct itself created a reason for termination other than a retaliatory one. See N.L.R.B. v. Mike Yurosek & Son, Inc., 53 F.3d 261, 267 (9th Cir.1995) (<HOLDING>). Instead, the employer’s burden is to show
holding an employee is an agent of his employer where the employer assumes the right to control time manner and method of work holding that evidence was insufficient to support conviction for vehicular homicide where the defendant was driving 60 miles per hour in a 30 mile per hour zone before the collision and a minimum of 50 miles per hour at the time of impact holding that an employer misses the point and failed to meet its burden where the employer ar gued that employees who engaged in the protected conduct of refusing to work an extra hour were lawfully punishable for being insubordinate in not working the extra hour holding that the intentional tort exception to employer immunity includes an objective standard to measure whether the employer engaged in conduct which was substantially certain to result in injury holding that the balance of relative harms to the parties showed employer did not meet its burden