A recent employment discrimination case offered insight into whether a performance improvement plan (PIP) constitutes an adverse employment action under the Age Discrimination in Employment Act (ADEA) and Chapter 151b. In Walsh v. HNTB Corp, 24-1499(March 13, 2026), the First Circuit held that placing an employee on a PIP, without more, did not constitute an adverse employment action. However, applying Muldrow v. City of St. Louis, 601 U.S. 346 (2024), the court acknowledged that a PIP could still constitute an adverse employment action under different circumstances.
To establish a claim of unlawful discrimination or retaliation in the workplace, it requires, among other elements, that an employee experiences an “adverse employment action.” In Muldrow, the US Supreme Court held that an employee need not show “significant” harm, but only “some harm,” to establish an adverse employment action. Courts remain unsettled with whether lesser disciplinary measures, such as placing an employee on a PIP, can constitute an adverse employment action. Although no brightline rule was adopted, the Walsh court’s decision highlights several practical steps employers can take to reduce legal risks by keeping PIPs corrective rather than punitive.
Plaintiff Joanne Walsh worked as an information technologies employee for HNTB Corporation for more than twenty-five years. In November 2019, ten months before her eventual resignation, HNTB placed Ms. Walsh on a PIP. The PIP highlighted complaints from Ms. Walsh’s coworkers that suggested she might be “an impediment to the success/performance of the office.” The PIP further critiqued Ms. Walsh’s failure to act and improve on issues identified in her previous annual performance review. The PIP outlined specific, actionable improvements tied directly to the identified performance concerns.
Following her resignation, Ms. Walsh sued HNTB asserting claims of age discrimination in violation of the ADEA and violation of Chapter 151b. Ms. Walsh argued that under Muldrow, the issuance of a “subjective and vague” PIP, along with unjust criticism of her work, constituted an “adverse employment action. The US District Court rejected this argument. The First Circuit affirmed the lower court’s finding that Ms. Walsh could not establish a discrimination claim based on HNTB’s issuance of a PIP, because the PIP did not constitute an adverse employment action. The Court reasoned that “the PIP did not assign [Ms.] Walsh new duties, alter her title or compensation, or limit her ability to seek other opportunities within the company.”
The First Circuit’s decision in Walsh is likely to inform future discrimination and retaliation claims, including those brought under Title VII of the Civil Rights Act.
Best Practices for Developing PIPs
Employers should ensure that PIPs are drafted to provide a genuine opportunity for growth and improvement, rather than to serve as a form of punishment. The analysis post-Muldrow focuses on whether the PIP altered the employee’s employment conditions. Based on the reasoning in Walsh, a PIP is less likely to be viewed as an adverse employment action when employers follow these principles:
- Identify the PIPs purpose as “an opportunity to correct unsatisfactory performance.” When the PIP is centered around an opportunity for improvement, it eliminates the association with punishment. The ultimate goal is employee growth, and the plan should be drafted in a way to achieve that goal.
- Specifically outline performance issues. Enumerate tangible areas of concern and unsatisfactory performance that relate to why the PIP is issued in the first place.
- Set and clearly communicate measurable expectations. Ensure that the employee is aware of how to improve on the PIP and what metrics are used to determine satisfaction with the program.
- Document support and progress. Maintain a detailed log of the employee’s progress throughout the program.
Employers should avoid inclusion of the following in PIPs:
- Changes to the employee’s job title, position or compensation. A change in any of those measures leans towards a form of punishment rather than an improvement plan and increases the risk that an employee is perceived as “worse off” due to the PIP. An unjustified reduction in compensation will almost always be considered an adverse employment action.
- Assignment of new or worse job duties. A PIP that changes existing expectations, creates new obligations, or drops previously held job duties could be considered an adverse employment action.
- Ineligibility for other opportunities within the company. A PIP should not directly or indirectly deprive an employee of potential advancement opportunities.
