Takeaways

• The First Circuit held in Walsh that placing an employee on a performance improvement plan (PIP), without more, was not an adverse action even in the wake of Muldrow.
• The decision illustrates that whether an action constitutes an “adverse employment action” remains unsettled.
• The decision also highlights several practical steps employers can take to reduce legal risk by keeping PIPs corrective rather than punitive.

Article

Establishing a claim of unlawful discrimination or retaliation in the workplace requires, among other elements, that an employee show they experienced an “adverse employment action.” Since Muldrow v. City of St. Louis, 601 U.S. 346 (2024), where the U.S. Supreme Court held that an employee need not show “significant” harm, but only “some harm,” to establish an adverse employment action, courts and litigants continue to grapple with whether lesser disciplinary measures constitute an adverse employment action sufficient to establish a claim.

In Walsh v. HNTB Corp., No. 23-1499 (Mar. 13, 2026), the U.S. Court of Appeals for the First Circuit offers guidance on whether lesser disciplinary measures, such as placing an employee on a performance improvement plan (PIP), can constitute adverse employment actions. Although the circuit court stopped short of adopting a categorical rule, its analysis underscores that context matters.

The Case

Plaintiff Joanne Walsh worked as an IT employee for HNTB Corporation for more than 25 years until she resigned...

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