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Labor and Employment stock illustration.With no disrespect intended, I’m not sure how many people would instinctively look to Axl Rose as a font of wisdom when it comes to workplace temperament and strategic, non-emotional decision-making. But, when employees are “welcomed to the jungle”—the jungle of discrimination and retaliation claims—it is Axl’s ballad “Patience,” the ode to taking things slowly with faith that “it will work itself out fine,” that provides the ultimate foundation for avoiding, and if necessary, defeating a retaliation claim. We will discuss first a retaliation claim brought by a poorly performing employee seeking a calculated windfall and then an employee who in good faith engages in protected activity.

Here’s a painfully familiar scenario. An employee who sees the writing of an imminent termination on the wall or who has been turned down for a promotion that he/she did not deserve responds, as so many employees are increasingly apt to do, by filing a complaint of discrimination either internally or with a governmental enforcement agency (e.g., EEOC, State Division on Human Rights, NYC Commission) to head off the termination or leverage a reconsideration of the promotion denial. Our low-performing employee subjectively perceives himself/herself as being immune from discipline, or may even be trying to bait a termination so as to win the proverbial lotto that a retaliation claim may bestow.

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