Performance Improvement Plan Alone Doesn’t Prove Discrimination

Takeaway: In placing an employee on a performance improvement plan (PIP), an employer should take care that its terms clearly state that its intended purpose is remedial, not punitive. Any negative effects on the employee’s conditions of employment, including changed duties, altered compensation, or limitations on seeking advancement opportunities, may make it more likely that the PIP could be determined an adverse action under a recent Supreme Court case.

Placing an employee on a performance improvement plan (PIP) did not violate the Age Discrimination in Employment Act (ADEA), the 1st U.S. Circuit Court of Appeals decided, because doing so did not affect her employment conditions.

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The plaintiff worked for more than 25 years as an information technology support representative for an architectural design firm, supporting her employer’s IT systems in multiple offices. She received a mediocre performance review from a new supervisor in 2018. The supervisor said that, although the employee “met expectations,” she lacked initiative and had not improved upon any of the “necessary [company] characteristics” identified in the prior year’s review. He warned her that she was at risk of not meeting expectations and might be placed on a PIP.

The 53-year-old employee was placed on a three-month PIP in August 2019 at the same time as a slightly older colleague, who held the same IT support position. The two PIPs were nearly identical. The plaintiff’s PIP provided a list of necessary performance improvements related to criticisms received from office staff and leadership. The team leader responsible for helping the employee successfully complete the PIP allegedly told her that “the company is not getting its return on investment for you” and that she could “be replaced with younger, cheaper people.”

The employee successfully completed the PIP in November 2019. The team leader became her supervisor shortly afterward. In her next evaluation, the supervisor said that she inconsistently met expectations and that 2019 had been a turbulent year for her with “some mixed results.” 

The employee felt that her working conditions worsened after the PIP, alleging that her supervisor yelled at her, took credit for her work, pressured her to respond to IT requests faster than necessary, and complimented younger IT support representatives without crediting her and the other older employee for similar work. She was not demoted or asked to leave the company nor was her compensation reduced. Although she never complained to HR or filed a complaint through her employer’s hotline, she and her older colleague simultaneously resigned Sept. 11, 2020. 

The employee sued her former employer under the ADEA, alleging that it had committed age discrimination by placing her on the PIP and had constructively discharged her. The district court granted summary judgment to the company and the employee appealed.

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Appeal Was Timely

Summary judgment was granted on Dec. 21, 2023, and on Jan. 19, 2024 — within the 30-day appeal period — the employee moved pro se to extend the notice-of-appeal deadline because she needed more time to find new counsel. The court allowed her until March 29, 2024, to file an appeal; she asked for two more extensions, which were granted, and filed her formal notice of appeal on May 15, 2024. The employer argued that the Jan. 19 request was her only timely extension request because she failed to file a notice of appeal within the additional time granted.

The appellate court rejected the claim that the appeal was not timely filed, finding that the motion to extend the notice of appeal deadline served as the “functional equivalent” of a notice of appeal because it 1) indicated her intent to appeal once she retained counsel and 2) contained the “pertinent information” required under the Federal Rules of Appellate Procedure: the names of the parties taking the appeal, the court to which the appeal is being made, and the order from which the appeal is being taken.

Claims Rejected

The court agreed with the plaintiff’s contention that the standard defining an adverse action enunciated by the U.S. Supreme Court in a sex discrimination case — Muldrow v. City of St. Louis — is applicable to actions brought under other anti-discrimination statutes, including the ADEA. In Muldrow, the Supreme Court had stated that an adverse action “is any employment event, regardless of its severity, in which an employer’s conduct leaves an employee 1) ‘worse off’ 2) with respect to the ‘terms or conditions’ of their employment.” 

The appeals court, examining the PIP in light of Muldrow to determine whether it affected the terms or conditions of employment, found that it did not. The PIP stated its purpose was to provide the employee “with the opportunity to correct unsatisfactory performance”; it did not assign her new duties, alter her title or compensation, or limit her ability to seek other opportunities in the company. “The PIP, on its face, appears to be nothing more than ‘documented counseling,’” the appeals court said.

Although the employee argued that the PIP’s existence alone is an adverse action, asserting that it was imposed merely because of her age, the court said that a per se rule that all PIPs constitute an adverse action is inconsistent with Muldrow’s requirement that the employee demonstrate a change in the term or conditions of employment. Post-Muldrow, “there is no one-size-fits-all answer for whether a PIP constitutes an adverse employment action,” the appeals court said. “Rather, the inquiry is fact-intensive and PIP-specific.”

Even accepting for argument’s sake that the PIP was motivated by age bias, and recognizing an objectively reasonable person may well experience distress from being placed on a PIP, the plaintiff failed to show how it altered her employment conditions, the appeals court noted. For this reason, the PIP’s imposition does not qualify in these circumstances as actionable conduct under the ADEA, the court found.

Turning to the plaintiff’s claim alleging that she suffered an adverse action through a constructive discharge, the court said that the ultimate question is whether a factfinder could determine that “the working conditions were so unpleasant that staying on the job while seeking redress would have been intolerable.”

The court said that comments made to the plaintiff by her supervisor during the PIP period — telling her in one instance to “shut up” and to “stop asking” him to identify employees who had complained about her — may have been harsh, but that they were “not the stuff of an intolerable workplace.” Similarly, his comment about the possibility of replacing her with “younger, cheaper people” may suggest age animus but does not demonstrate an environment that would compel a reasonable person to resign, the court said. 

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The court noted that many of the plaintiff’s allegations, such as the supervisor “making mountains out of molehills,” not “listening to her side of the story,” “micromanaging,” and “taking credit” for her work, depend more on the plaintiff’s subjective beliefs about her supervisor’s management style than objective facts. Although the supervisor may have been disagreeable sometimes, “employment discrimination laws do not shield an employee from the ‘usual ebb and flow of power relations’ that may come after the assignment of a new supervisor.” The court concluded that a reasonable factfinder could not conclude that the situation was so intolerable that resignation was the plaintiff’s only option.

Finally, in response to the plaintiff’s argument that she was constructively discharged because she believed that she would be fired at the end of the PIP, the court noted that she successfully completed the PIP, no one ever asked her to leave her position, and her 2019 performance review never suggested that her employment was in jeopardy. For her constructive discharge claim to proceed to trial, the plaintiff must show more than “unpleasantness, hurt feelings, and wounded pride,” the court said, and she failed to do so. 

Walsh v. HNTB Corp., 1st Cir., No. 24-1499 (March 13, 2026).

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.