The U.S. Court of Appeals for the First Circuit recently ruled that an employer’s placement of an employee on a performance improvement plan (PIP) did not violate the Age Discrimination in Employment Act (ADEA). Although a PIP can be evidence of an adverse action when it negatively affects an employee’s conditions of employment, it is not an ADEA violation if it does not affect employment conditions.
Due to this ruling, employers should ensure they use PIPs for remedial, not punitive, purposes. If a PIP negatively alters employment conditions, such as changes in responsibilities, pay, or advancement opportunities, then a court may see the PIP as evidence of discrimination.
In Walsh v. HNTB Corp., 1st Cir., No. 24-1499 (March 13, 2026), the plaintiff worked for more than 25 years as an information technology support representative at an architectural design firm. In 2018, a new supervisor gave her a mediocre performance review, claiming that she lacked initiative and had failed to improve upon the prior year’s stated expectations. As part of that review, the supervisor warned her of a potential PIP.
In August 2019, the company placed the 53-year-old Walsh on a three-month PIP at the same time as a slightly older employee working in the same position. Both employees completed their PIPs, which were almost identical, in November 2019.
The team leader who assisted Walsh in completing the PIP allegedly told her that a younger, cheaper employee could replace her. After completion of the PIP, the team leader became Walsh’s supervisor and, at her 2019 review, advised her that she had only “inconsistently” met expectations and that her performance had “some mixed results.”
Thereafter, Walsh said that her employment conditions worsened, although she was not demoted, asked to leave, or paid a lower salary. Walsh never complained to HR or otherwise, and she and the other employee ultimately resigned in September 2020.
Walsh then sued her former employer for discrimination under the ADEA due to the PIP and constructive discharge. The federal district court granted summary judgment to the employer in December 2023. In response to the court’s ruling, Walsh timely appealed in January 2024. The appellate court ultimately rejected Walsh’s claims, upholding the federal district court’s grant of summary judgment.
The court agreed with Walsh that the applicable definition of an adverse action, as articulated by the Supreme Court in Muldrow v. City of St. Louis, is any employment event in which the employer’s conduct negatively affects the employee’s conditions of employment. Based on this definition, the court concluded that Walsh’s PIP did not constitute an adverse action. More specifically, the PIP stated that it was remedial and did not assign Walsh new responsibilities, place her in a different position, or alter her compensation. The court declined to adopt Walsh’s contention that her PIP was an adverse action solely because of her age, as it failed to change the terms or conditions of employment. Also, it noted that ruling all PIPs to be adverse employment actions would defy the Muldrow definition.
Likewise, the court rejected Walsh’s constructive discharge claim. Comments that her supervisor allegedly made to her while the PIP was in place, while harsh, did not create the type of intolerable working conditions essential to a constructive discharge claim. Instead, many of Walsh’s allegations represented her subjective beliefs about her supervisor’s management style, rather than objective facts. As a result, the court ruled that a reasonable person would not have found the working conditions so abhorrent as to render resignation the only option.
The court also dismissed Walsh’s argument that the employer constructively discharged her because she believed that she would be fired once completing the PIP. Instead, the court noted that the employer neither fired her nor asked her to resign, and her subsequent performance review suggested no likelihood of termination.
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