Walsh v. HNTB Corp., No. 24-1499, 2026 WL 710036, in which the Court clarified the United States Supreme Court’s decision in Muldrow v. City of St. Louis, 601 U.S. 346 (2024). The First Circuit held that an employer’s performance improvement plan (“PIP”) must actually have adverse effects on the employee’s terms and conditions of employment in order to be considered an adverse employment action under Federal anti-discrimination statutes. According to the First Circuit, “A per se rule that all PIPs constitute an adverse action is inconsistent with Muldrow.”
To briefly recap, in 2024, the Supreme Court issued its decision in Muldrow and rejected the “materiality” requirement for an employee to successfully show they were subjected to an adverse employment action in setting forth a federal discrimination claim. While courts previously required employees pursuing such claims to demonstrate that the specific adverse action was material or rose to a level more disruptive than a mere inconvenience, Muldrow held that any employment event can be considered an adverse action so long as the employee is “worse off” with respect to the terms or conditions of their employment.
The appellant in Walsh argued that after Muldrow, any PIP should be considered an adverse employment action for the purposes of proving a federal discrimination claim. The First Circuit was not convinced and declined to adopt a “one-size-fits-all” approach to PIPs and adverse employment actions. Instead, the...
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