grimm was suspended wrongfully for reporting safety violations to the california highway patrol chemical company appeals from that decision on three different grounds the first round is that male j and the department of labor wrongfully and in a manner that the requires that is reversible error place the burden on the employer rather than on the employee the second argument deals with three instances of acknowledged admission of hearsay testimony which we believe materially contributed to the decision which also would require reversal and the third argument we are making is that  given any prior arbitration decision among the same parties the department of labor should in fact have deferred to that decision on the basis of the fur powers they have under the gentleman the claimant to the employee says no there was really a discriminatory reason and that is why you took the action and then the person shifts back to the to the employee at the very end to show that it the action even with a bad motive or even in the absence of the bad motive based on the good motive now the second point i want to make to the very different tasks in pretax it's the employee having the burden of the end in the mix motive it is indeed the employer the department of labor if everybody agrees it was a pretext  what the difference is that even explosive sort of assumes from the start almost an admission that there is a bad movie that motivated the employer as well as a good employer said well i may have considered the fact that the employee was  a certain racial group but i still would have fired him anyway because he committed terrible that's conduct that's the argument but the pretext case it's simply the employer said we do in this case that there was significant that's correct your honor and that is what the employee says as though those were pretext reasons those were really why he fired you fired me because i made a report to the california highway patrol so in that sort of a pretext case which everybody agrees no they actually fired me because i made these reports and then the employer response as we did now the reports had nothing to do with indeed that's that's positive behavior we fired you first series of misconduct which was very serious that is the final burden that's the key here the final burden on the employee to say no that was a pretext that wasn't really the motivation of the cause you to take this action and that final burden legally under a pretext analysis there's no question has to be on the employe proof was not on the employee yes your honor there is a and those are the citations we make in our briefing pages eighteen nineteen twenty one and in our reply the grief at six seven there are very explicit statements in the  clearly place the burden on the employer the employer failed to show by a preponderance of the evidence we cite those and that is again reversible error there are two cases we saw in our site in a reply brief page seven the belief that the very clear that the weak the parties agree it's a pretext analysis under a pretext analysis the burden the final burden is on the employee and in this case the a l j wrongfully place that burden and shifted it heard from somebody in short hearsay testimony that indeed this other fellow was not suspended well that is one instance that even worse is the allen buckley testimony where he was the only source of evidence saying that another it's not even hearsay because it wasn't used to prove the truth of the matter asserted but the only evidence in the entire case of the use of a racial epithet and of the lack of suspension is the single employee's testimony and what buckley it clearly has be safe without it there's no evidence of the record that there was a racial slur used by mr hartwell and indeed buckley says he doesn't really know what happened but he kind of soft part won't work therefore he must not have been did have a result that was not repugnant to the purposes of the act but we argued that in this case each of those three situations existed virtually as we point out in our brief virtually all the same witnesses had testified at the arbitration a number later testified at the department of labor proceeding indeed germann himself aggressively in affirmatively raise the issue that he later liberty and it with the department of labor when he he thought he was a marked man achree filed the c h p complaint the arbitrator however didn't find him credible didn't believe a lot of his testimony and found significant evidence that indeed it was this wrongdoing it was the  there's a three person panel who heard the arbitration there were roughly ten fifteen witnesses who testified there were documents introduced there were opening statements there were closing arguments there were briefs that were submitted the arbitration was transcribed by a reporter and indeed there was a twenty page written opinion by the arbitrator so it's entirely have an appropriate you know proceeding to screen from air finally the outcome of the proceeding wasn't repugnant to the act because what the arbitration held is this employee was properly fired for a series of agree just misconduct and it certainly doesn't extend the act it's not repugnant to the act to fire an employee for threatening other employees for profanity and racial epithets for telling other people not to do work which was part of the basis of it for telling people not to clean their trucks a concrete company and for an actual physical assault to another argument should if you agree with that argument we believe the court should simply declare that that should have been the act in the first to that arbitration and that when the math the other two arguments should you believe they have merit we would argue gender i don't think it is i think both are based on about age i don't think it's more important gender or age i think a lot of inconsistent and again you heard counsel argue a few minutes ago that this indeed is a pretext case in a pretext case the final burden shifts to the employee to show that the employer's  valid reason was pretextual and that simply didn't happen in this case if you look at our reply that page six let me just read a cliff where the evidence of do about it exists the employer bears the burden of the stablish by a preponderance of the evidence it would have taken the adverse employment action in the absence of the employees protect the neck of it is one example  show by a preponderance of the evidence it would have taken the same actions even in the absence of the protected activities again placing the burden on the employer one another one as on a dual motive analysis such is a red herring hostage deals with how we address that makes money the case and indeed must you have circumstantial evidence or direct evidence that's all very interesting and academic but it doesn't apply to this case because this is a pretext case and it was handled wrong when it should be retry now let me briefly also addressed the crux of the arbitration housel indicated that it was clearly arbitration did not deal with the safety issue well on the contrary the issue was dealt with at some length and i quote from our reply brief again page sixteen and let me just quote a little bit of the testimony question himself testifying on the stand that the arbitration which supposedly didn't deal with the safety issue question have you contacted i believe you said you contacted outside agencies regarding problems or safety issues a common answer yes do you feel that the company has unfairly singled you out because of your activities as a union steward answer yes then he goes on to say since i have filed the c h p complaint i believe i have been a marked man the c h p paid then and they filed you know they filed the company the company admitted they were in violation it was a contract issue or whatever and they're supposed to check back then i  whistle blower's complaint and that has been turned down by the osha department this was the part of his case in arbitration and again the first all doesn't require the same legal issue legal issue before the department of labor was was he suspended for necessarily must have decided that indeed he wasn't fired for the c h p report otherwise it would have been a discharge without just cause so clearly they were there with the same factual issue indeed you will it was relied upon it materially contributed and the only evidence that there was ever any racial slur directed to buckley and indeed that the person addressing that racial slur was not suspended is but his own testimony and he can't know about someone else a suspension other than hearing it by hearsay and then obviously his is remark reporting the racial slurs hearsay as well so again for each of these three arguments we believe that this case should be either reversed and tried again if you grant merit to the first two arguments or if you believe that indeed the department of labor's strong strong national policy to defer to arbitration  was indeed not done this time and if you believe which i think the briefs clearly show that it dealt with a very factual issue the core of that arbitration was was this employee fired because  reporting actions to see and a three panel arbitration decision said no that wasn't the reason and for all those reasons we would hope that the decision would be vacated and dismissed as being