merrill and the implied threat of violence by mr cameron and the board is not entitle to the deference in this case because its conclusions are not based on substantial evidence in the record adequately considering opposing record of a person who posing evidence in the record as a whole and also not following its precedent in the courts with respect to mr romero conway national safety program is designed to prevent future accidents of focuses on the prevent ability accidents and mr romero is ultimately discharged when in an investigation where he is being shown drive him video he does not accept even partial responsibility or agree that he was distracted in any way by manipulating an electronic device about a nd wall he's careening down the highway being passed by another tractor trailer he shows no self awareness you know already recognition that this is in any way improper or contrary to common policy indeed unlawful in california this court's president holds that if an employer acts based upon reasonable business judgment then it has an engaged in discrimination under  the and conway's actions here are at least minimally reasonable there the board does not contest that the dr cam video showed that indeed he was manipulating hearing you know denies any culpability in any respect you just characterized it as undisputed that he was hearing into another lane i thought that nobody was contending with actually hearing into another  making is that the reason for the borrowing was also yes it wasn't that i've got attempting to do that your honor i'm simply just highlighting the fact that in an investigation he was given a fair opportunity to explain himself and he didn't waver from that position it's undisputed and the board  say in his initial accident report he designed mention the i pod in his report to the you know to safety department he does not mention the bible and that's the false occasion for which he was terminated with respect to turning on the camera if you look at pages sixty four dollars sixty five cents of the joint appendix it's clear that this is not an issue of honesty  fail to report an accident so there's no honesty involved because he doesn't know what's happened at the time that he turns on the camera but the degree of damage is at the top at the at the time that he turns on video what i want to point out at the time that he saves to drive him video he doesn't know the degree of the accident if he comes back to the facility and doesn't report an accident that is also you know a cause for discipline so there's no honesty involved he's following policy right you have characterized him as not taking responsibility for his actions and it just struck me that there was some taking of responsibility so i wanted to clarify well that in its context well that they have a what i would call a layered safety program which is that they place a great deal of emphasis on accurate reporting of an accident in these reports to the safety department because they don't have a situation where there others are there other circumstances where a driver has been fired for this similar type of false patient there are one of the themes of the problem with what the board did here is that they don't adequately address and grapple with  comparative evidence instead they use pretext as an excuse to not gravel the undisputed unrebutted evidence in the record is that the company consistently discharges for similar false occasions that evidence is unchallenged in the record what's your closest comparison or that you would have us or mean you know one or two or three that that you would have us look to closest t contradictory credibility determinations there is a discussion involving three people the board on pages six hundred and eleven dollars sixty one cents of the appendix credit mr rezai where there the board's findings are premised entirely on its belief that there are two propositions one that occurs when this to resign has left for about seven or eight minutes but if you take a look at this evidence it's very clear that it's clearly right at the end of the conversation and mr reside oh supports mr cameron his version of that is which the board credits without exception were raised during my friend's presentation i think it's important to step back as i believe judge wilkins mentioned and appreciate the import of the fact that the company has never said that mr america was was his responsibility for the accident and if false they cation issue had not been in play that the only consequence of his actions in the truck would have been a point assessed and a non disciplinary approaching so this isn't about safety it's about the claim the prosecution dish and only there was some discussion about whether anyone ever said that mr merrill feared out of his line and i think that's important and it's an important part of the evidence that supports the board's finding a pretext while it's true that the company in its final accident report and in its disciplinary documents took the position that mr mero merely drifted to the far right of his lane while the other truck drifted toward him and then there was contact made between the two trucks mr anderson and in his testimony at the hearing offered a very different picture and said that mr merrill beard over into the other lane or cross over the line into the other lane and struck the other vehicle or as a vehicle two did not hit mr america so that's in sharp contrast with the company's own disciplinary documents and it's also at odds with the evidence in the record point about mr america acknowledging i just want to clarify following up on that discussion that when mr grimm error was interviewed i guess they had the conversation in august th involving mr or evidence the board didn't refuse to consider that evidence the board considered it and properly determine that it was not applicable in this circumstance and i think there's a few reasons st as  board found with respect to the decision to investigate these other employees presumably were investigated for a legitimate good faith reason and i guess if i could back up for a minute maybe i should have  this before there's no it's undisputed that the company does not investigate every reported accident that occurs in the road that's trucks and the company put no evidence in the record i think this is also undisputed that my friend can correct me if he thinks that's wrong i think it's also undisputed that the company put forth no evidence and it's never suggested that it has any established criteria policy or guidelines that determined when it does or does not decide to investigate but they did put forward put forth evidence that there were other people whom they investigated where they determined there was false occasion and where they eventually discharge those people but the board's finding reasonable is that they're not they're not actually comparable and they're not comparable with respect to the decision to investigate because those employees presumably were the company the company makes selective choices about which is an accident investigat those employees presumably were investigated for legitimate good faith reasons whereas the board found that the reason given for the best sit in to investigate mr romero was an accident was  the evidence that supports that where you have so many comparable investigations well but your honor that the number of investigations i really don't think this is so impressive when the company i point because the board based its finding that mr ramirez protected activity was a motivating factor in the adverse actions on other grounds which i'm happy to go through if you'd like but if i could make on the record and decided that that that there were several bases to demonstrate that the company's purported false a vacation rationale was a pretext and that the company in fact did not rely on that rationale so the fact that they can point to twelve other employees out of who knows how many accident reports and how many videos actually there is some evidence in the record about how many there are there is quite a lot i think go into if you like the fact that they can point to some other people or where they discharge them when they did rely on that rationale is really of no moment when there is these several reasonable bases for the board to conclude that here they did not rely on that   found that there were two and that that's contradicted by the record because it has crediting discrediting the testimony the same witness i don't think that well so sure there are no let me respond i don't think there's any  actually that it's one conversation in fact it's a very drawn out conversation and mr assad estimated that the conversation took place over the course of about thirty minutes so the exhibit that my friend is referring to blow account of everything that was said in this approximately thirty minute long conversation it was a summary of what they recalled and it's undisputed well yes it is and disputed that mr result though testified that he was not present for seven to eight minutes of that conversation so his testimony that yeah while i was around i didn't see mr camarena do any of those things that simply does not resolve the conflict in the minutes and as the judge found well detailed in her decision and affirmed by the board mr cameron and showed himself to be and he faces and at times blatantly dishonest witness you can have a couple of m is that it was that mr watch here had on a number of occasions asked to have you know whether some of the word out of the lane verified through drive here and that's completely the ring points out and says the sense this is not a fruit of the poisonous tree situation because the company has shown that it acted routinely to investigate this matter and then he was you know