Employment – Adverse action – PIP

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Where (1) a plaintiff who resigned from her job later brought suit alleging that the defendant employer committed unlawful age discrimination by placing her on three-month performance improvement plan (PIP) and (2) the defendant was awarded summary judgment on the ground that no reasonable fact-finder could conclude that the PIP constituted an adverse employment action, the judgment should be affirmed because the plaintiff has not shown how the PIP altered her employment conditions.

“Joanne Walsh worked for many years as an information technology (‘IT’) employee for HNTB Corporation in its Boston, Massachusetts office. In August 2019, the company placed Walsh on a three-month performance improvement plan (‘PIP’) that she successfully completed. About ten months later, Walsh resigned. She then sued HNTB alleging, inter alia, that the company committed unlawful age discrimination, primarily by placing her on the PIP and then constructively discharging her.

“The district court granted HNTB summary judgment on the grounds that no reasonable factfinder could conclude that the PIP constituted an adverse employment action or that Walsh resigned in circumstances that constituted a constructive discharge. Walsh appealed. In response, HNTB challenged the timeliness of the appeal and defended the judgment on the merits. We conclude that the appeal is timely and affirm the judgment. …

“After her resignation, Walsh sued HNTB in Massachusetts state court, asserting claims under the Age Discrimination in Employment Act (‘ADEA’), 29 U.S.C. §621 et seq., and Massachusetts’s law prohibiting age discrimination in employment, see Mass. Gen. Laws ch. 151B, §4(18) (‘Chapter 151B’), along with a claim for the breach of the implied covenant of good faith and fair dealing under state law. HNTB removed the case to federal court and after discovery, moved for summary judgment.

“The district court granted HNTB’s summary judgment motion. It ruled that Walsh had not suffered an adverse action by being placed on a PIP because ‘Walsh successfully completed the PIP,’ she ‘was neither demoted nor her pay reduced,’ and ‘any changes in her responsibilities were de minimis.’ The court also concluded that the constructive discharge allegation failed because the complained-of comments from management occurred months before Walsh resigned; the post-PIP changes under Vealey’s supervision were not substantial enough to show that Walsh was forced to resign; and there was no evidence that HNTB was contemplating dismissing Walsh when she decided to quit. Finally, the court rejected Walsh’s claim for a breach of the implied covenant of good faith and fair dealing. Walsh appeals the summary judgment ruling only insofar as it grants HNTB summary judgment on the federal and state age-discrimination claims. …

“As mentioned above, the district court granted HNTB summary judgment on the ground that Walsh failed to present sufficient evidence that the company subjected her ‘to an adverse employment action,’ the third aspect of the prima facie inquiry. On appeal, Walsh makes two arguments on this point. First, she asserts that under the Supreme Court’s decision in Muldrow v. City of St. Louis, 601 U.S. 346 (2024), which was issued after the district court’s summary judgment ruling, several of HNTB’s actions — the August 2019 PIP, a cessation in pay raises, and an alleged decrease in job duties — should be considered adverse actions. Second, she contends that she suffered a constructive discharge — an adverse action tantamount to termination, see Suárez v. Pueblo Int’l, Inc., 229 F.3d 49, 54 (1st Cir. 2000) — because, starting with the PIP, her work environment deteriorated so much so that she had no choice but to resign in September 2020. …

“We start with Walsh’s Muldrow-based contentions. The ADEA prohibits age discrimination when it negatively affects an employee’s ‘compensation, terms, conditions, or privileges of employment.’ 29 U.S.C. §623(a)(1). …

“Because Walsh focuses most on her August 2019 PIP, we begin our analysis there. A PIP does not have the same effect in every employment situation. Sometimes, an employer may issue a PIP to warn an employee about performance deficiencies or assist an employee in developing a plan to achieve an identified opportunity for skill development. … In those cases, a PIP is not an adverse employment action. … Other times, a PIP may impose new job responsibilities, change the present terms of employment, or deprive an employee of potential advancement opportunities. … In these situations, a PIP may serve as an adverse employment action. … Post-Muldrow, then, 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. We therefore examine the particulars of Walsh’s PIP to determine whether it affected the terms or conditions of her employment.

“It did not. … The PIP, on its face, appears to be nothing more than ‘documented counseling.’ …

Walsh does not dispute this characterization of the PIP. Instead, she argues that its existence alone is an adverse action and assigns it a more sinister cast by alleging that her managers imposed it because of her age. But, as we have explained, a per se rule that all PIPs constitute an adverse action is inconsistent with Muldrow‘s requirement that the employee demonstrate a change in the terms or conditions of employment. And even accepting for argument’s sake that Walsh’s PIP was motivated by age bias, and recognizing an objectively reasonable person may well experience distress from being placed on a PIP, Walsh still has not shown how it altered her employment conditions, which is the focus of our analysis post-Muldrow. The PIP’s imposition therefore does not qualify in these circumstances as actionable conduct under the ADEA or Chapter 151B. …

“The other incidents that Walsh identifies as adverse actions under Muldrow also do not suffice. …

“We turn now to Walsh’s claim alleging that she suffered an adverse action through a constructive discharge. …

“Ultimately, the record shows that Walsh was a long-tenured and generally successful HNTB employee who was dismayed that the company placed her on a PIP in 2019. Walsh views that decision as a step in HNTB’s age-motivated scheme to push her out. But for Walsh’s constructive discharge claim to proceed trial, she must show more than ‘unpleasantness, hurt feelings, and wounded pride.’ … For the reasons discussed, she has not done so.”

Walsh v. HNTB Corporation (Lawyers Weekly No. 01-048-26) (27 pages) (Aframe, J.) Appealed from a decision by Gorton, J., in the U.S. District Court for the District of Massachusetts. Michaela C. May, with whom Zachary H. Hammond and Bennett & Belfort were on brief, for the plaintiff-appellant; Mark C. Tatum, with whom Stephen I. Hansen and Shook, Hardy & Bacon were on brief, for the defendant-appellee (Docket No. 24-1499) (March 13, 2026).

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