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Under California law, to establish a claim for workplace retaliation, the employee must show (1) that he engaged in a protected activity (such as complaining about harassment or discrimination, exercising rights under FMLA or disability laws, filing a workers compensation claim, participating in a union related activity, taking time off to serve on a jury duty, testifying in court, etc...); (2) the employer subject the employee to an adverse employment action (demotion / termination / transfer to a less desirable position or location); and (3) there exists a causal link between the protected activity and the employer's action. Colarossi v. Coty US Inc. (2002).
While the first two elements of a retaliation claim can be usually demonstrated by the aggrieved employee's own testimony, the third element is naturally a challenge to prove. In other words, an employee can testify to the fact that he complained and was terminated shortly after, but proving the critical elements that complaining was the reason for termination is difficult because direct evidence of the link is, of course, rarely, if ever, available. No employer in his right mind will admit that he actually retaliated against an employee. Therefore, most retaliation claimants must rely on circumstancial evidence of proving their case. Circumstantial evidence typically related to such factors as the plaintiff's job performance, the timing of events, and how the plaintiff was treated in comparison to other workers. Flait v. North American Watch Corp. (1992). Thus, excellent performance reviews before the protected activity, followed by poor performance reviews shortly after the protected activity can be one piece of evidence of retaliatory motive. Being a long-term employee and being terminated shortly after engaging in a protected activity is even stronger evidence of employer reprisal. Finally, when the discipline imposed on one employee is harsher than the discipline imposed on other workers for the same violation (for instance: verbal warning for being late once vs. suspension for the same violation against a victim of retaliation) can be also used to support a retaliation claim.
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