A Performance Improvement Plan, PIP, standing alone with no other evidence and no other action, is not necessarily considered an actionable “adverse action” for a discrimination claim. However, when there is other evidence of discrimination, an undeserved PIP may be an illegal attempt to hide an illegal discriminatory motive in a termination. Employees who are given a Performance Improvement Plan, generally are given 30 or 60, or less frequently, 90 days to meet the goals of the PIP or face a possible termination. Unscrupulous employers who want to terminate a worker who is in a protected class, such as race, age, sex, etc., for discriminatory reasons may give a PIP to the worker with vague goals, no clear language or bench marks, to have a bogus excuse to fire the worker, in a pre-emptive strike to build a legal defense in the event the employee subsequently files a discrimination lawsuit. While some employers genuinely want the employee to meet the goals and improve in order to retain the employee, not all employers have such above-the-board intentions. See Employee Performance Evaluations.
Don’t sit on your rights. If your employer has discriminated against you, or you have been put on a PIP, threatened with termination or have been terminated for what you believe is an illegal reason, you should contact this law firm today for a free consultation. I accept cases from all over NJ and have locations in Southern, Central and Northern NJ to meet with clients. Employment/Civil Rights Law. If you are experiencing such discrimination, you should contact this office immediately at 201 599-9600 for a free consultation.
The United States Supreme Court in Muldrow v. City of St. Louis, 601 U.S. 346 (2024) held that forced transfers and job reassignments could be evidence of illegal discrimination. However, courts have ruled that being place on a PIP, standing alone, without other evidence of discrimination, is insufficient for a viable discrimination claim. See discussion below.
An Employee Does Not Have to Suffer Pecuniary Loss to Have the Employer’s Action Be an “Adverse Action” Against the Employee.
Federal law, Title VII makes it unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C.S. § 2000e-2(a)(1). New Jersey has a similar state statute, the New Jersey Law Against Discrimination. Under either statute, the Plaintiff has to show she suffered an “adverse action” as a result of the employer’s illegal bias against her, based on her protected class. An “adverse action” is one that is “materially” adverse such as having your hours reduced or a demotion. However, an employee does not have to suffer an immediate pecuniary loss to have the action be adverse. In some situations, it could be a transfer to a far distant location involving a long commute, or a schedule shift changed from weekdays, daytime shifts, to graveyard shifts.
The United States Supreme Court in Muldrow v. City of St. Louis held that forced transfers and job reassignments could be evidence of illegal discrimination, a “material change”, an adverse action, even though the Plaintiff maintained the same rank and salary.
Lower courts in cases heard before and after Muldrow, have ruled that a PIP, standing alone, without other significant changes in employment status, does not amount to an adverse action that would enable the Plaintiff to prevail in a discrimination claim.
The Supreme Court in Muldrow held that forced transfers and job reassignments could be evidence of illegal discrimination in some instances. In doing so, the Court expanded the legal standard for what qualifies as an “adverse employment action” that would allow a Plaintiff’s case to go forward. It changed the standard applied for an action to be considered “materially adverse” from instead of asking whether the change in terms or conditions of employment was “material”, to asking whether the change left the employee worse off, in those terms or conditions.
In this matter, the US Supreme Court had to decide a matter where a female a police officer, Police Sargent Muldrow, a sergeant in the St. Louis Police Department, could sustain a viable sex discrimination claim under when she was transferred from her position, when she maintained the same title, rank and pay. She worked in the Department’s prestigious, specialized Intelligence Division from 2008 through 2017 as a plainclothes office. In 2017, the new commander asked to transfer Muldrow out of the unit so he could replace her with a male police officer.
The Department approved the request against Sargent Muldrow’s wishes, and reassigned Sargent Muldrow to a uniformed job elsewhere in the Department. Her status, responsibilities, perks, and schedule did not remain the same, although her rank and pay were unchanged. After the transfer where she had been replaced with a male officer, she no longer worked with high-ranking officials on the departmental priorities lodged in the Intelligence Division. Instead, she was assigned to supervising the daily activities of neighborhood patrol officers. In the new position, she had a less regular schedule which involved her working weekend shifts. She also lost access to an unmarked take home vehicle. Sargent Muldrow alleged that she was moved from a plainclothes job in an extremely prestigious specialized division where she had substantial responsibility over priority investigations and frequently worked with Police Commanders, to a new uniformed job, primarily performing administrative work, and supervised patrol officers with less involvement in high status and high visibility crime matters.
The Supreme Court in Muldrow held that to make out discrimination claim, a transferee had to show some harm respecting an identifiable term or condition of employment, but did not have to show that the harm incurred was significant, serious, or substantial; and that the lower court in this case had erred in requiring a police sergeant to show that an allegedly discriminatory transfer produced a significant employment disadvantage. The allegations that she was moved from a plainclothes job in a prestigious specialized division with substantial responsibility over priority investigations and frequent opportunity to work with police commanders, to a uniformed job primarily performing administrative work, supervising one district’s patrol officers with less involvement in high-visibility matters, a less regular schedule, and no take-home car were sufficient. to read further on this case, see NJ Employment Attorney, Can Forced Transfer or Changing One’s Duties Be Discrimination? US Supreme Court on Forced Transfers and Title VII.
Lower courts in cases heard both before and after the Supreme Court in Muldrow, have ruled that a PIP, standing alone, without other significant changes in employment status, does not amount to an adverse action that would enable a Plaintiff to prevail in a discrimination claim. However, note, that when there is other evidence of discrimination, e.g., jokes about persons in your class, derogatory race-based, age-based or sex-based epithets, being shut out of meetings, etc., an undeserved PIP may be evidence of actionable discrimination.
In 2011, Reynolds v. Dep't of the Army, 439 Fed. Appx. 150 (2011) the Third Circuit Court of Appeals held that imposing a PIP on an employee is not an adverse action that standing alone can sustain a discrimination claim. In this case, the supervisor evaluated the Plaintiff’s performance, concluding that he had failed to meet two out of his seven job objectives. She then waited for nearly two months before meeting with him again regarding his evaluation and she presented him with a Performance Improvement Plan. Under the PIP, he was given 90 days either to bring his performance to an acceptable level or face the possibility of reassignment, demotion, or termination. On November 4, 2004, the day after he received the PIP, the Plaintiff applied for two early retirement incentive programs, the Voluntary Early Retirement Authority and Voluntary Separation Incentive Pay. The court referred to the US Supreme Court, citing Burlington Indus. v. Ellerth, 524 U.S. 742, (1998), which defined an adverse employment action as a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits,” and that the Plaintiff’s PIP standing alone did not satisfy that standard.
It also noted that other Circuit Courts have concluded that a PIP, standing alone, is not an adverse employment action absent accompanying changes to pay, benefits, or employment status, citing Cole v. Illinois,562 F.3d 812, (7th Cir. 2009); Haynes v. Level 3 Commc'ns, LLC, 456 F.3d 1215, (10th Cir. 2006).
In a recent case decided on March 13, 2026, Walsh v. HNTB Corp., 169 F.4th 330 (2026) by the First Circuit Court of Appeals, which Circuit is not controlling over New Jersey cases, the court held that a performance improvement plan (PIP) that identified performance problems and improvement methods without altering duties, compensation, title, or advancement opportunities did not constitute an adverse action, even where the employee successfully completed the PIP and alleged age-based motivation.
In this matter, the Plaintiff worked for HNTB Corporation from 1994-2020 as a Technology Support Representative II. In August 2019, the Plaintiff and her female colleague were placed on identical three-month performance improvement plans (PIP). The Plaintiff successfully completed the PIP in November 2019. After the PIP, the Plaintiff alleged she experienced a changed management style under her supervisor including micromanagement and credit-taking.
About ten months after she completed the PIP, the Plaintiff resigned in September 2020. She brought a claim under the Age Discrimination in Employment Act (ADEA), 29 U.S.C.S. § 621 et seq., alleging that a constructive discharge had occurred as a result of her age.
The court found that between the end of the PIP and her resignation, the Plaintiff never complained to human resources or submitted any complaint to HNTB's hotline system about being mistreated by her supervisor or anyone else. She had not been demoted from her TSR II position, and her compensation was not reduced. No one at HNTB ever asked or told her to leave her employment. Nevertheless, on September 11, 2020, about ten months after the Plaintiff had successfully completed the PIP, and she was still working, she and her he female co-worker simultaneously resigned from HNTB and walked out together. For constructive discharge, the court emphasized that the standard was an objective standard and found that supervisor comments and management style changes, although unpleasant, did not create objectively intolerable conditions requiring resignation. The Court held that where a supervisor’s comments occurred during her PIP period, followed by micromanagement and credit-taking that the employee subjectively disliked, but Plaintiff completed the PIP, and no threats of her termination were made, and the employee chose when to resign, ten months later, that no constructive discharge occurred. For age NJ age discrimination, harassment and retaliation claims, see New Jersey Age Discrimination Lawyer.
To read on failure to promote due to age, you may read NJ Employment Attorney, Older Employees Denied Promotions.
To read about deeply ingrained institutional ageism reaching epidemic proportions age occurring in the IT management industry, see NJ Age Discrimination Attorney, Qualified and Experienced IT Specialists Fired Due to Age.
Don’t Sit on Your Rights
I have represented employees who were illegally discriminated against by their employers, and was successful in recovering financial compensation for their emotional pain and suffering and moneys for lost wages, both for past lost wages and projected future lost wages. If you think you are being discriminated against, you should contact this office immediately for a free consultation. I accept discrimination and whistleblower cases from all over New Jersey and have locations in Southern, Central and Northern NJ to meet with clients.
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Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.