CASE PROCESSING PROCEDURES; EVIDENCE – Hearsay

Single Topic for Decision 2337E

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Employee conduct asserted by a responding party to establish its affirmative defense must be proved by sufficient independent evidence, and where, as here, the independent evidence is insufficient, a proposed finding concerning the asserted conduct is properly refused. Hearsay may corroborate, but not serve in lieu of, admissible evidence. Although admissible, the role of hearsay remains supplementary. Hearsay may explain or support otherwise admissible evidence, but by itself, even in abundance, hearsay is insufficient for a finding either of the existence of an alternative, non-discriminatory reason or that a respondent acted therefor. Although admissible, hearsay testimony and documents are insufficient to support a finding. The Board requires sufficient independent, non-hearsay evidence to conclude that the challenged action would have occurred in the absence of the employee’s protected activity.