It used to be pretty well settled in Massachusetts (and many other places) that an employee couldn’t win an employment discrimination case without proving 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 didn’t have to prove her employer’s allegedly discriminatory decision caused her a “significant disadvantage.” Instead, she only had to prove it caused her to experience “some harm.”
This dramatic shift in the employee’s burden of proof 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 U.S. 1st Circuit Court of Appeals (whose rulings apply to all employers in Massachusetts, Maine, New Hampshire, and Rhode Island) took a more measured approach, holding that—even under the new Muldrow standard—an employee didn’t suffer an adverse employment action when her employer put her on a performance improvement plan (PIP). 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 their working conditions had become truly intolerable.
IT Tech Resigns 10 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 on issues that had been raised in her previous review, and was at risk of being placed on a 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, her team leader and her supervisor both agreed she had satisfied the PIP’s conditions.
Shortly after the PIP ended, Walsh’s team leader became her new supervisor and, according to Walsh, her working conditions declined. She claimed 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, didn’t listen to her side of stories, and, on one occasion, yelled at her. She never made a complaint to HR 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 filed suit against HNTB in Suffolk County Superior Court. She claimed, among other things, that HNTB discriminated against her based on her age. To support her claim, she cited the PIP and the circumstances of her resignation as adverse employment actions. The case was moved to federal court, and after discovery (pretrial fact finding), HNTB asked the court to enter judgment in its favor without a trial. In particular, the company argued 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 1st Circuit, the Supreme Court had issued its Muldrow decision, 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 1st Circuit rejected her argument.
PIP That Only Warns About Performance Issues Isn’t an Adverse Action
Even under the employee-friendly Muldrow standard, the court concluded Walsh hadn’t 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 them to improve aren’t 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 didn’t assign her any new duties, didn’t change her title or her compensation, and didn’t limit her ability to pursue other opportunities within HNTB. It did remind her that HNTB had the right to terminate her employment before the end of the three-month plan, but the court concluded that reminder didn’t change any term or condition of her employment because she was an at-will employee before, during, and after the PIP. As a result, the court held that HNTB didn’t take an adverse employment action against her when it imposed the PIP.
No ‘Intolerable’ Working Conditions
The court also rejected Walsh’s argument that she experienced an adverse employment action because she didn’t resign voluntarily but was instead constructively discharged.
At the outset, the court explained that an employee’s resignation doesn’t morph into a constructive discharge unless the 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 didn’t 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 she was going to be fired at the end of her PIP, “apprehension of future termination is insufficient to establish constructive discharge.” Walsh v. HNTB Corp.
Takeaways
Putting an employee on a PIP—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 1st Circuit’s decision in Walsh makes clear that employers that 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 those communications didn’t 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 the change is. For this reason, you should consider this distinction before taking corrective action, and if you intend to use corrective action as a vehicle to impose punitive job changes rather than merely to communicate about problems, you would be smart to consult with an employment attorney before pulling the trigger.
Erica E. Flores is an attorney with Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts, and can be reached at eflores@skoler-abbott.com.