Can A Discrimination Claim Be Based On A Performance Improvement Plan?

By Erica E. Flores - Skoler Abbott P.C.

March 23, 2026

It used to be pretty well settled in Massachusetts (and many other places) that an employee could not win an employment discrimination case without proving that their employer’s allegedly discriminatory actions caused them to suffer meaningful harm, i.e., that the “adverse employment action” their employer took against them was “material.”  That changed back in 2024, when the U.S. Supreme Court ruled in Muldrow v. City of St. Louis that an employee who was claiming gender discrimination did not have to prove that her employer’s allegedly discriminatory decision caused her a “significant disadvantage.”  Instead, she only had to prove that it caused her to experience “some harm.”

This dramatic shift in the employee’s burden of proof has led to a string of opinions all over the country finding that relatively minor employment actions meet the “some harm” threshold, including written warnings and other performance management tools.  In a recent decision, however, the First Circuit Court of Appeals took a more measured approach, holding that, even under the new Muldrow standard, an employee did not suffer an adverse employment action when her employer put her on a performance improvement plan.  This rare win for employers offers critical new guidance about what the “some harm” standard means in Massachusetts.  It also reaffirms that an employee cannot prove they were forced to resign unless they can show that their working conditions had become truly intolerable.  

IT tech resigns ten months after surviving a PIP

From January 1994 until September 2020, Joanne Walsh was employed by HNTB Corp. as an IT support representative.  In 2018, she was assigned a new supervisor who completed her performance evaluation for that year.  He rated her performance satisfactory, but he also wrote that she lacked initiative, had failed to improve upon issues that had been raised in her previous review, and that she was at risk of being placed on a performance improvement plan (“PIP”).  The following year, that risk materialized when she was placed on a three-month PIP.  The language of the PIP was scathing but, at the end of the three-month period, Walsh’s team leader and her supervisor both agreed that she had satisfied the conditions of the PIP.

Shortly after the PIP ended, Walsh’s team leader became her new supervisor and, according to Walsh, her working conditions declined.  She claimed that he took credit for her work, blamed her for mistakes he made, pressured her to work faster than was necessary, made mountains out of molehills, did not listen to her side of stories, and, on one occasion, yelled at her.  Walsh never made a complaint to Human Resources or to anyone else at HNTB about her supervisor’s behavior but, in September 2020 – less than a year after she completed the PIP – she resigned.

In March 2022, Walsh brought suit against HNTB in Suffolk County Superior Court.  She claimed, among other things, that HNTB discriminated against her on the basis of her age.  In support of this claim, she cited the PIP and the circumstances of her resignation as adverse employment actions.  HNTB removed the case to federal court and, after conducting fact discovery, it asked the court to enter judgment in its favor prior to trial.  In particular, HNTB argued that Walsh never suffered a material adverse employment action.   The court agreed and entered judgment in HNTB’s favor.

By the time Walsh appealed to the First Circuit Court of Appeals, the Supreme Court had issued its decision in the Muldrow case, so her primary argument on appeal was that she suffered enough harm to require her case to be tried to a jury under the new “some harm” standard.  The First Circuit rejected her argument.

A PIP that does no more than warn about performance issues is not an adverse action  

Even under the employee-friendly Muldrow standard, the court concluded that Walsh had not produced enough evidence to convince a reasonable jury that she suffered an adverse employment action when she was placed on the PIP.

First, the court distinguished PIPs that are issued “to warn an employee about performance deficiencies or assist an employee in developing a plan to achieve an identified opportunity for skill development” from PIPs that “impose new job responsibilities, change the present terms of employment, or deprive an employee of potential advancement opportunities.”  According to the court, PIPs that merely warn the employee or assist the employee to improve are not adverse employment actions.  And while the latter category of PIPs may be adverse employment actions, the court emphasized that “there is no one-size-fits-all answer for whether a PIP constitutes an adverse employment action.  Rather, the inquiry is fact-intensive and PIP-specific.”

Turning to the facts of this particular case, the court noted that the PIP’s stated purpose was to give Walsh “the opportunity to correct [her] unsatisfactory performance.”  It then identified several problem areas and provided a corresponding list of ways for her to improve.  The court pointed out that it did not assign her any new duties, it did not change her title or her compensation, and it did not limit her ability to pursue other opportunities within HNTB.  It did remind Walsh that HNTB had the right to terminate her employment before the end of the three-month plan, but the court concluded that that reminder did not change any term or condition of Walsh’s employment because she was an at-will employee before, during, and after the PIP.  As a result, the court held that HNTB did not take an adverse employment action against Walsh when it imposed the PIP.

Ordinary workplace disagreements, unpleasantness, and hurt feelings do not create “intolerable” working conditions

The court also rejected Walsh’s argument that she experienced an adverse employment action because she did not resign voluntarily but was instead constructively discharged.

At the outset, the court explained that an employee’s resignation does not morph into a constructive discharge unless the employee’s working conditions were “so onerous, abusive, or unpleasant that a reasonable person in the employee’s position would have felt compelled to resign.”  The court also pointed out that this is a rigorous standard because employees “must endure the ordinary slings and arrows that workers routinely encounter in a hard, cold world.”  Accordingly, an employee cannot prove they were forced to quit unless they can show that staying on the job would have been “intolerable.”

In this case, Walsh alleged nothing more than a few harsh comments from her supervisors, one age-related remark, her own perceptions of her new supervisor’s management style, and her belief that she was going to be fired at the end of her PIP.  Even when viewed in the aggregate, the court concluded that these allegations did not rise to the level of “intolerable” working conditions.  On the contrary, the harsh comments were merely verbal arrows during a disagreement and, even if her supervisor did make an age-related comment, “comments suggesting possible age bias are not themselves grounds for quitting.”  As for Walsh’s complaints about her supervisor’s management style, the court reiterated that “the 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.”  And even if Walsh did believe that she was going to be fired at the end of her PIP, “apprehension of future termination is insufficient to establish constructive discharge.”

Takeaways

Putting an employee on a performance improvement plan – or issuing any other type of corrective action – is never an easy decision.  But these are critical weapons in the performance management arsenal, and they create invaluable evidence of the employer’s motivations, intentions, and decisions that can make the difference between a win and a loss in court.  After Muldrow, taking these actions does carry increased risk – the “some harm” standard is a low bar and whether it is satisfied will depend on the unique facts of the case.  But the First Circuit’s decision in Walsh v. HNTB Corp. makes clear that employers who use PIPs and other disciplinary actions merely to communicate with their employees about performance deficiencies, skills deficits, or behaviors have a good chance of being able to demonstrate that those communications did not cause any harm to the employee.  On the flip side, Walsh also puts employers on notice that a corrective action that makes a negative change to the terms or conditions of the employee’s employment could very well be deemed an adverse action no matter how minor that change is.  For this reason, employers should consider this distinction before taking corrective action and, if they intend to use corrective action as a vehicle to impose punitive job changes, rather than merely to communicate about problems, they would be smart to consult with an employment attorney before pulling the trigger.

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