CASE PROCESSING PROCEDURES; EVIDENCE – Hearsay

Single Topic for Decision 2090M

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* * * OVERRULED IN PART ON OTHER GROUNDS by Walnut Valley Unified School District (2016) PERB Decision No. 2495. * * *

Given that supervisor did not testify to explain his actions and the only evidence on the basis for a counseling memo came in the form of uncorroborated hearsay testimony, the employer failed to establish any legitimate justification for the memo and the decision to reassign the employee and the imposition of new and onerous restrictions on his working conditions were taken in retaliation for exercise of protected rights. Likewise, in the absence of any testimony by percipient witnesses to underlying alleged incidents of workplace violence, the decision to place employee on administrative leave and terminate him were pretextual and taken in retaliation for exercise of protected rights.