What Is the Burden of Proof for FMLA Retaliation?

To succeed in an Los Angeles FMLA retaliation claim, the employee bears the burden of proof. This means the employee must provide factual evidence to show that the employer took adverse action because of their use of FMLA leave. Courts expect more than suspicion or personal belief.

The Standard of Proof

In civil cases, including FMLA retaliation claims, the standard of proof is a preponderance of the evidence. This means the employee must prove that it is more likely than not that the employer retaliated. The employee does not have to prove retaliation beyond a reasonable doubt, but they must show that retaliation was a substantial or motivating factor in the employer’s decision.

How Courts Evaluate FMLA Retaliation Claims

FMLA retaliation claims are typically evaluated under the McDonnell Douglas burden-shifting framework, a three-step process courts use in Los Angeles employment discrimination and retaliation cases: 

1. The Employee Must Establish a Prima Facie Case

To begin, the employee must present enough facts to show that retaliation may have occurred. The employee must prove:

• They engaged in protected activity under the FMLA (requested or took leave)
• They suffered an adverse employment action (e.g., termination, demotion, denied benefits)
• There is a causal connection between the protected activity and the adverse action

This step requires minimal evidence, such as suspicious timing (e.g., being fired soon after returning from leave) or changes in behavior by supervisors following the leave.

2. The Employer Must State a Legitimate, Non-Retaliatory Reason

If the employee presents a prima facie case, which is the initial set of facts that must be proven to support a legal claim, the burden of proof then shifts to the employer. They must provide a lawful explanation for its actions. Common employer defenses include:

• Poor performance or disciplinary issues
• Company-wide layoffs or restructuring
• Attendance violations unrelated to FMLA leave
• Misconduct or insubordination

The employer must only offer a non-retaliatory justification, not prove it beyond a doubt. However, this reason must be specific and supported by evidence.

3. The Employee Must Prove Pretext

Once the employer gives a reason, the burden shifts back to the employee to prove that the reason is a pretext—a cover for unlawful retaliation. To show pretext, the employee can present evidence that:

• The employer’s reason is inconsistent, changing, or not credible
• Other employees with similar performance were treated more favorably
• The discipline was unusually harsh or sudden
• Supervisors made negative remarks about the FMLA leave
• The timing of the action strongly suggests retaliation

Courts will look at the totality of the evidence to decide whether the adverse action was motivated by FMLA-related animus.

What is Direct vs. Circumstantial Evidence?

Employees can prove FMLA retaliation through either direct evidence or circumstantial evidence.

• Direct evidence includes explicit comments or documents that show retaliatory intent (e.g., “You missed too much work on leave, and now we’re letting you go”).
• Circumstantial evidence involves timing, patterns, or inconsistencies that suggest retaliation, even without a smoking gun.

Most retaliation cases are based on circumstantial evidence, which is still legally valid if persuasive. Contact our proven employment lawyers in Los Angeles for a free consultation today.