762.6 Rebuttal Evidence

Generally, evidence offered in a Complainant’s rebuttal case is permitted only if it is responsive to new facts put in evidence by the Respondent in its case, but this rule is flexible, and an exception is made when admission of the proposed evidence is necessary to achieve justice. The Commission examines an ALJ’s ruling excluding proposed rebuttal evidence on the basis of whether it was a reasonable exercise of discretion, but an erroneous exclusion of evidence would only require reversal if there was a reasonable probability that it contributed to the outcome of the proceeding. Here, the exclusion of two rebuttal witnesses was not an abuse of discretion. The witnesses should have been presented in the Complainant’s case-in-chief because the Respondent’s articulated non-discriminatory reason, which the evidence was intended to rebut, was put in evidence prior to the conclusion of the Complainant’s case-in-chief. In addition, the proposed evidence was integral to the Complainant’s proof of causation, an element of his claim under the direct method of proof. Also, the Complainant did not show that the proposed evidence would have been crucial to the outcome of the case if it had been admitted. Oertel v. K & A Mfg. Co. (LIRC, 06/16/14).

In the strictest sense, rebuttal evidence is that evidence offered by the Complainant after the Respondent has rested its case to contradict specific evidence unexpectedly presented by the Respondent. But in a broad sense, rebuttal evidence is any evidence offered by either side in order to rebut evidence which could not reasonably be anticipated and which surprised the party offering the rebuttal evidence. The surprise claimed should be considered to be tempered by the extent to which a party knew or should have known what testimony would be offered. Schwantes v. Orbit Resort (LIRC, 05/22/86).