First Circuit Evaluates PIPs As Adverse Employment Actions 

To establish a viable claim of employment discrimination or retaliation, an employee must show, among other things, that they suffered an “adverse employment action.” While termination is a quintessential adverse action, less serious actions are also legally sufficient. In a recent decision in Walsh v. HNTB Corp., the First Circuit provided guidance as to when a performance improvement plan (“PIP”) may constitute an adverse employment action.  

 

Background 

In Walsh, the plaintiff, Joanne Walsh, worked as an information technology employee for HNTB Corporation in its Boston office for over 25 years. In 2019, when she was approximately 54 years old, she and another older employee in the same job were placed on nearly identical PIPs. During the course of the PIP, Walsh’s team leader told her that she could “be replaced with younger, cheaper people.” Walsh successfully completed the PIP but then felt that her working conditions deteriorated and she was treated differently than younger employees in the same job. Ten months after completing the PIP, Ms. Walsh and the other older employee who had been placed on the same PIP resigned. Ms. Walsh subsequently sued HNTB under both state and federal law, alleging that it had discriminated against her based on her age by placing her on a PIP and then constructively discharging her. The District Court found for HNTB on the discrimination claims, holding that no reasonable factfinder could conclude that Ms. Walsh’s PIP constituted an adverse employment action under the Age Discrimination in Employment Act (“ADEA”) or M.G.L. c. 151B,. The District Court applied the same analysis to Ms. Walsh’s ADEA and 151B claims, noting that “the standards applied for age discrimination claims under federal law and Massachusetts state law are so similar that both claims can be analyzed together.” On March 13, 2026, the First Circuit affirmed the lower court’s ruling. In doing so, it provided important guidance on the proper adverse-employment-action standard and on when an employer-imposed PIP may satisfy that standard. 

 

The Muldrow Standard 

Following the District Court’s ruling in Walsh, the Supreme Court decided Muldrow v. City of St. Louis. As we have noted, in Muldrow the Supreme Court held that the adverse action at issue in a sex discrimination claim under Title VII of the 1964 Civil Rights Act need not be “material.” The Muldrow Court held that an adverse action is an employment event, regardless of its severity, that leaves the employee worse off with respect to the terms or conditions of their employment.  

As the First Circuit noted in Walsh, although Muldrow was a Title VII case, its standard is applicable to many other anti-discrimination statutes given that it interpreted the statutory phrase “terms or conditions of employment,” which also appears in statutes like the ADEA. Even though Massachusetts appellate courts have not explicitly adopted the Muldrow standard under Chapter 151B, Massachusetts’ anti-discrimination law, the First Circuit in Walsh applied the Muldrow standard when interpreting 151B because the parties agreed that the same standard applied, and because the court assumed Massachusetts would follow Muldrow. In doing so, it emphasized the extent that other courts have adopted Muldrow in their interpretation of anti-discrimination statutes.  

 

Performance Improvement Plans 

The court held “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.” Relying on Muldrow, the court described a category of PIPs that will not normally rise to adverse actions. These PIPs merely “warn an employee about performance deficiencies or assist an employee in developing a plan to achieve an identified opportunity for skill development.” On the other hand, the court explained that a different class of PIPs—those that “impose new job responsibilities, change the present terms of employment, or deprive an employee of potential advancement opportunities”—may qualify as adverse employment actions. 

In this case, the court found that Ms. Walsh’s PIP had not altered the terms and conditions of her employment, because it did not assign her new duties, change her title or compensation, or restrict her ability to pursue other internal opportunities—steps that would have been more likely to support a finding that the PIP constituted an adverse action.  

 

Conclusion 

It appears likely that Massachusetts courts will adopt Muldrow’s broader conception of an “adverse action” in the context of Chapter 151B claims, and, in line with the Supreme Court’s approach, do away with the “materiality” requirement for proving an adverse employment action. Further, determining whether a PIP constitutes an adverse employment action will continue to be a fact-intensive inquiry, and a variety of factors, including those identified by the Walsh court, will be considered. Because the inquiry is fact-specific, it is likely that this new standard will allow more plaintiffs to get their cases past the summary judgment stage, and to trial on the issue of whether they have experienced adverse employment actions. 

 

If you have experienced workplace discrimination, or you have another workplace legal concern, contact our employment attorneys at (617) 742-6020.  

 

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