First Circuit Finds PIP Did Not Alter Employment Terms And Therefore Was Not An Adverse Action

March 18, 2026

What's New

The First Circuit held that a Performance Improvement Plan (PIP) issued to an IT employee did not constitute an adverse employment action under the Supreme Court’s Muldrow standard. The court found the PIP imposed no new duties, changes in pay, limits on mobility, or modifications to the employee’s terms or conditions of employment. The court characterized the PIP as “documented counseling” rather than actionable conduct, even under Muldrow’s broadened definition of adverse action. Consequently, the appellate court upheld the lower court’s dismissal of the plaintiff’s age discrimination claim.

What It Means

Even after Muldrow, not every PIP will qualify as an adverse action; employers must still make some change to the employee’s terms or conditions of employment for liability risk to attach. Of course, employers may lawfully issue PIPs—even if they are adverse actions—when supported by legitimate, nondiscriminatory reasons. Nonetheless, when a PIP does not alter job structure, pay, or responsibilities, employers are better positioned to secure early dismissal of discrimination lawsuits because plaintiffs cannot meet the adverse action requirement.

What You Should Do

Employers should contemporaneously document the legitimate reasons for implementing a PIP. It may also be helpful to review the structure of PIPs and the extent to which they risk being considered an adverse action. CWC members can explore the practical impacts of the decision and best practices for PIPs during Conversation Corners.

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