in the decision to terminate the employee.” Crosby, 76 Hawai'i at 342, 876 P.2d at 1310; accord Nabors Alaska Drilling, Inc. v. N.L.R.B., 190 F.3d 1008, 1015 (9th Cir.1999). Second, once the employee makes its prima facie showing, the employer must then “ ‘defend affirmatively by showing that the termination would have occurred regardless of the protected activity.’ ” Crosby, 76 Hawai'i at 342, 876 P.2d at 1310 (quoting N.L.R.B. v. Howard Elec. Co., 873 F.2d 1287, 1290 (9th Cir.1989)); see also N.L.R.B. v. Searle Auto Glass, Inc., 762 F.2d 769, 773 (9th Cir.1985) (“[A]s an affirmative defense, the employer may show by a preponderance of the evidence that the employee would have been terminated even in the absence of the protected conduct.”); Nabors Alaska Drilling, 190 F.3d at 1015 (<HOLDING>). An employer may negate causation ex post
holding that in title vii disparate treatment case in order for a plaintiff to establish a prima facie case the plaintiff must proffer evidence among other things that she performed her job according to her employers legitimate expectations if the plaintiff establishes the prima facie case the presumption shifts the burden to the employer to produce a legitimate nondiseriminatory reason for its actions holding that if the plaintiff makes a prima facie case the defendant employer must then articulate some legitimate nonretaliatory reason for the adverse action and the employee must then have a fair opportunity to show pretext that is that a discriminatory intent motivated the employers action holding that once the moving party makes a colorable claim that its first amendment rights have been in fringed or are threatened with infringement the burden shifts to the government to justify the restriction holding that the fourteenth amendment precludes peremptory challenges predicated upon race and that once a defendant in a criminal case makes a prima facie showing of discrimi nation the burden shifts to the prosecution to demonstrate a neutral explanation for the challenges holding that once the employee makes its prima facie showing the burden then shifts to the employer to prove that legitimate reasons supported the termination