In Walsh v. HNTB, the First Circuit recently weighed whether a performance improvement plan (PIP) was an adverse action for purposes of the 55-year-old plaintiff’s age discrimination claim. The employee Joanne Walsh had worked for more than 25 years as an information technology (IT) employee for Defendant HNTB Corporation in its Boston office. In August 2019, the company placed Walsh on a three-month PIP that she successfully completed. Approximately 10 months after completion of the PIP, Walsh resigned and sued HNTB alleging, among other claims, that the company had discriminated against her because of her age by placing her on a PIP and then, after the PIP was completed, constructively discharging her.
The court noted 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.” The court then looked at the details of Walsh’s PIP to determine whether it affected the terms or conditions of her employment. The PIP rode on the heels of a performance review wherein her supervisor had noted that, though she met expectations, her scores were among the lowest. The PIP itself identified the grounds for the PIP and stated it provided Walsh with the “the opportunity to correct [her] unsatisfactory performance.” It then identified the problem areas and provided a list of corresponding ways to improve. For example, the PIP stated that she should be “more proactive” and act as an “advocate” for the offices she supported; she should clean her office because it was so messy that it was “difficult for employees to access IT resources.” However, the PIP did not assign Walsh new duties, change her hours, alter her title or compensation, or limit her ability to seek other opportunities within the company.
The company placed another over-50 IT employee on a PIP at the same time as Walsh. Further, during the PIP period, Walsh’s team leader told her that “[t]he company is not getting its return on investment for you” and that she could be “replaced with younger, cheaper people.” Walsh alleged that she was placed on the PIP because of her age. In reviewing her allegation, the court stated “even accepting for argument’s sake that Walsh’s PIP was motivated by age bias, and recognizing an objectively reasonable person may well experience distress from being placed on a PIP, Walsh still has not shown how it altered her employment conditions.” Indeed, the court stated that, “on its face, [the PIP] appears to be nothing more than ‘documented counseling.’” The court also found that Walsh’s other claim related to constructive discharge were without merit. Her complaints centered around harsh words from her managers, a manager with occasional disagreeable behavior and general workplace friction but had not “created a situation so intolerable that resignation was Walsh's only option.”
The important takeaway from the court’s decision is the structure and focus of a PIP matter. A PIP that identifies objective and measurable performance issues without changing an employee’s title, compensation, hours or duties is a legally defensible performance tool. The grounds for the PIP should be specific and identifiable; the desired performance benchmarks should be objective and measurable; and similar performance from other employees should be handled consistently across the workforce without regard to protected classes such as age, gender, race, etc.
