1st Circuit Applies New Test to PIP Analysis

October 16, 2026

Important Takeaways: Courts will determine whether a performance improvement plan (PIP) is an adverse employment action on a case-by-case basis. The Supreme Court removed the requirement that an employment action must be material to constitute an adverse employment action, but the PIP will constitute an adverse employment action only if it changes the terms of employment or reduces job responsibilities.

Facts: Joanne Walsh worked in the IT department of HNTB, an engineering firm, from 1994 until 2020, when she resigned. Walsh’s duties included helping HNTB employees with their technology needs and managing HNTB technology leases. In 2018, Walsh was warned in her performance review that she “met expectations” but that she was at “the lowest in the range.” Walsh v. HNTB Corporation, No. 24-1499, at 7 (1st Cir. 2026). The review ended with Walsh’s supervisor warning that her performance put her at risk of needing a performance improvement plan (PIP).

In August 2019, Walsh and another IT employee were put on 3-month-long PIPs. Walsh received her PIP because she “made it difficult to get things done and was perceived to be an impediment to the success/performance of the office.” Additionally, Walsh was contentious, would say nothing could be done before looking for solutions, and hid in the IT room. Finally, the reasoning for the PIP included that Walsh did not take any steps to improve on the comments in her 2018 performance review. After being informed of the PIP, Walsh began pestering HNTB employees in an attempt to discover who complained about her. When her supervisor found out about this, he told her, “Stop asking. Stop talking to people. Shut up.” Later, a different supervisor told Walsh that “the company is not getting its return on investment for you” and that she could “be replaced with younger, cheaper people.”

At the end of the PIP, HNTB determined that Walsh’s performance had improved. A few months later, Walsh’s supervisor completed her 2019 performance review. The review stated that Walsh had inconsistently met expectations, but her technical skills were very solid. Nevertheless, Walsh felt that her working conditions had declined. For example, her supervisor would take credit for work that she completed. Additionally, her supervisor would take the lead on the tasks she was working on and would only give Walsh responsibility once “things went sideways.” Walsh stated that the supervisor pressured her into responding to IT requests faster than necessary, and often “made mountains out of molehills.” However, Walsh never complained to HR, was never demoted, never had her compensation reduced, and was never asked to resign. Despite this, Walsh resigned in September 2020 and filed an age discrimination lawsuit against HNTB.

Court findings: To win an age discrimination claim, Walsh needed to show that (1) she was at least 40 years old, (2) her job performance met the employer’s legitimate expectations, (3) the employer subjected her to an adverse employment action, and (4) the employer did not treat her in an age-neutral manner when taking the adverse action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, at 802-05 (1973).

The lower court granted summary judgment to HNTB on the age discrimination claim because, in its opinion, Walsh’s PIP was not an adverse employment action. Thus, Walsh could not provide the evidence required to satisfy the third prong of the McDonnell Douglas test. When a party wins on summary judgment, the judge decides, as a matter of law, that there is no way a reasonable jury could find in favor of the other party. Here, the lower court found that the PIP was not an adverse employment action because it did not materially affect the terms or conditions of her employment.

On appeal, Walsh argued that the lower court should be reversed because, in Muldrow v. City of St. Louis, the Supreme Court of the United States removed the requirement that an adverse employment action must be material (more disruptive than a mere inconvenience or an alteration of job responsibilities) to violate Title VII of the Civil Rights Act or the Age Discrimination in Employment Act (ADEA). 601 U.S. 346 (2024). Under Muldrow, an adverse employment action is any employer action that leaves the employee worse off with respect to the terms or conditions of their employment. Muldrow, at 354. Walsh argued that, under Muldrow, being assigned a PIP is an automatic adverse employment action.

The First Circuit Court of Appeals disagreed. The court of appeals noted that a PIP does not have the same effect in every employment situation. For example, an employer may issue a PIP as a warning about performance deficiencies or to assist an employee in skill development. The court found these reasons for a PIP do not leave the employee worse off. However, a PIP may constitute an adverse employment action if it imposes new job responsibilities, changes the terms of employment, or deprives an employee of potential advancement opportunities.

Walsh’s PIP, however, explicitly stated that its purpose was to provide Walsh with the opportunity to correct her unsatisfactory performance. The PIP did not assign Walsh new duties, alter her title, reduce her compensation, or limit her ability to seek other opportunities within the company.

Walsh then argued that because HNTB stopped giving her raises in the final three years of her employment, she suffered an adverse employment action. However, the record showed that Walsh was ineligible for pay raises because she reached the top of the salary range for her role. In the education context, imagine reaching the last step in the employee’s lane.
Walsh then turned to her allegations that her supervisor took the lead on tasks she normally handled. Under Muldrow, a loss of job duties is explicitly listed as an adverse employment action. However, Walsh never explicitly stated what duties were taken away. Additionally, Walsh said that her supervisor gave her the reins once any difficulties arose. Thus, the court found no adverse employment action.

Finally, Walsh argued that she was constructively discharged. Termination from employment is an obvious adverse action. A resignation is a constructive discharge when the working conditions become so abusive that a reasonable person in the employee’s position would feel compelled to resign. However, an employee is not guaranteed a workplace free from the ebb and flow of power relations. Thus, the standard is closer to actual abuse rather than mere unpleasantness. Walsh based this claim on her supervisor’s direction that Walsh should “shut up.” However, the court found this response to be a “verbal arrow” that may occur during a disagreement in a difficult situation. The supervisor’s comments were in response to Walsh’s repeated attempts to discover who made complaints about her. The court found this response unpleasant but not abusive. Additionally, the comments about Walsh being replaced with “cheaper, younger people” suggest age discrimination, but do not create an environment that would compel a reasonable person to resign.

The First Circuit Court of Appeals did not find any adverse employment actions, so it affirmed the lower court’s decision to grant HNTB summary judgment.

What this means: The removal of the materiality requirement makes more employer actions possibly adverse. However, a PIP on its own will not be considered adverse if it is implemented to warn the employee about unsatisfactory work or to improve job skills. In the education context, a PIP will be adverse if it strips the employee of duties or removes the employee’s ability to be considered for a promotion.

Walsh v. HNTB Corporation, No. 24-1499 (1st Cir. 2026). it here.

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