The 10-Point Evidence Checklist for FMLA Retaliation Claims in Michigan

Bywarreng24

When I evaluate whether an FMLA retaliation case is worth taking, I’m looking at ten specific pieces of evidence. Not all ten have to be present. But the more boxes you can check, the stronger the case — and the more likely an employer’s insurance carrier will value the case realistically at settlement.

Here’s the checklist, in order of importance.

1. Your FMLA request was in writing

Verbal FMLA requests work legally. The law doesn’t require a specific form. But verbal requests are dramatically harder to prove later, because your former employer will often claim the conversation never happened or happened differently than you remember.

Written requests — an email to your supervisor or HR, a submission through the company’s HR portal, a leave-request form you filled out, a letter — create a permanent record. If you’re even contemplating requesting FMLA leave, send the request in writing. If you’ve already made a verbal request, follow it up with an email that confirms what you asked for.

2. You meet the FMLA’s four eligibility criteria

The FMLA applies only when:

  • The employer has 50 or more employees within a 75-mile radius of your workplace
  • You have worked for the employer for at least 12 months (not necessarily consecutive)
  • You have logged at least 1,250 hours during the 12 months immediately before the leave
  • You work at a location covered by the first factor

If you miss any one of these, your claim isn’t under the federal FMLA. You may still have protections under the Americans with Disabilities Act, the Pregnancy Discrimination Act, or Michigan state law — but the FMLA specifically won’t apply.

3. A healthcare provider supported your leave request

For leave based on a serious health condition, the employer is allowed to demand a medical certification. Keep your copy. Also keep:

  • The employer’s request for certification
  • Any correspondence about adequacy of the certification
  • Any follow-up the employer demanded — second opinions, re-certifications, fitness-for-duty evaluations

Excessive or invasive certification demands can themselves constitute FMLA interference and strengthen a retaliation case.

4. The underlying medical condition is documented

  • Appointment records
  • Hospital discharge papers
  • Prescriptions and pharmacy records
  • Provider notes
  • Family member medical records (if the leave was for a family member)

You don’t need to share this information with anyone other than your FMLA attorney and (in limited form) the employer. But preserving it creates the evidentiary foundation for the case.

5. The adverse action happened close in time to the FMLA activity

This is often the single most important factor. Federal courts in Michigan (including the Sixth Circuit, which reviews decisions out of EDMI and WDMI) have treated short time gaps as powerful circumstantial evidence of causation.

  • 1 to 2 weeks: extremely compelling
  • 3 to 8 weeks: strong with corroborating evidence
  • 2 to 6 months: possible, but requires more evidence
  • More than 6 months: difficult without direct evidence

Document the exact dates of the FMLA request, the leave itself, your return, and the adverse action.

6. The employer’s stated reason is weak or shifting

Employers facing FMLA retaliation claims almost always offer a non-retaliation rationale. The rationale is often:

  • Inconsistent with your performance history
  • Unsupported by documentation
  • Shifting (the reason given at termination differs from the reason given in an EEOC response, which differs from the reason given at deposition)
  • Applied to you when it wasn’t applied to others
  • Framed around events that all happened after the FMLA request

Any of these weaknesses is evidence of pretext — that the stated reason is a cover story.

7. Comparator evidence

Think about coworkers who did not request FMLA leave.

  • Were any of them disciplined or terminated for the kinds of “issues” the employer now cites about you?
  • Were their performance problems documented?
  • Were they given opportunities to improve?

If coworkers who didn’t take leave were treated more favorably for similar or worse conduct, that’s comparator evidence. It’s one of the most persuasive forms of circumstantial proof at summary judgment and trial.

8. Statements from supervisors or HR about your leave

What did decisionmakers actually say — about your leave, about you, about the fact that you were taking time off?

  • Emails or Slack messages referencing your absence or “availability”
  • Verbal statements you heard from supervisors or HR about your leave
  • Comments about you needing to “show commitment” or be “fully available”
  • Complaints (in writing or verbal) about your schedule or leave

Direct statements about the FMLA activity — particularly from the decisionmaker — can be case-dispositive.

9. Your performance history before the leave request

Pull together every performance review, award, commendation, and positive written feedback from before the FMLA request. If the employer now claims “performance issues,” a pre-leave track record of positive reviews directly contradicts that rationale.

The inverse is also important: what you were not told. If the employer never counseled you, wrote you up, or raised performance concerns before the leave request, and is now claiming long-standing issues, that’s evidence the employer is manufacturing a defense.

10. Witnesses

Colleagues who observed your work before and after the leave, who heard supervisor complaints about your FMLA leave, or who witnessed the shift in how you were treated are often important trial witnesses.

Gather names and contact information. If possible, get them on a group email or text chain about the work environment before you lose access to company communications.

How many boxes do you need to check?

There’s no magic number. Most winning FMLA retaliation cases have four to seven of these ten factors present. Some cases win on three particularly strong factors (a clear written request, a tight timeline, and direct supervisor statements, for example). Some cases lose despite eight factors if the employer’s documentation of prior performance issues is airtight.

This is one reason FMLA cases vary so much in outcome. The substance of the evidence matters, not just the count.

What to do if you think you have a case

Three steps:

  1. Start preserving evidence now. Email copies to yourself before you lose access. Write down timelines, names, and specific statements while your memory is fresh.
  2. Don’t sign anything. Severance agreements in exchange for releasing claims are often offered quickly; they’re generally binding once signed.
  3. Call for a free consultation. A 15–30 minute conversation will tell you whether your case is strong enough to move forward.

Call 814-821-1140 or request a free case evaluation →.

For a detailed walkthrough of FMLA retaliation law, including employer defenses and damages available, see the FMLA Retaliation practice area page →.

Warren Astbury is a Harvard Law graduate (2009) with 15 years of experience and 50+ trials to verdict. He represents Michigan employees — only employees, never employers — at Astbury Law, PLLC in Detroit. Past results do not guarantee future outcomes. The information on this page is for general educational purposes and is not legal advice. No attorney-client relationship is created by reading this page.

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