To prove a claim of work-related discrimination or retaliation, an employee must prove that he or she suffered an “adverse employment action.” A recent federal appeals court decision, Walsh v. HNTB Corporation, provides employers with guidance as to whether disciplinary action less than termination can constitute an adverse employment action. While the First Circuit Court of Appeals did not adopt a bright line rule, the court’s analysis can be helpful to employers in creating and issuing Performance Improvement Plans (“PIPs”).
Plaintiff Joanne Walsh was employed by HNTB for more than 25 years and resigned from employment in September 2020. Almost 10 months prior to her resignation, she was placed on a PIP. The PIP addressed co-worker complaints against Walsh, some of which indicated she could be “an impediment to the success/performance of the office.” The PIP also emphasized Walsh’s failure to improve her work performance, which had been the subject of her prior performance review. The length of the PIP was for three months and provided guidance to Walsh as to what her employer’s performance expectations were moving forward. At the end of the three-month period, two of Walsh’s supervisors concluded that she had barely met the expectations set out in the PIP.
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