I hope everyone is enjoying the start of baseball season. The NCAA’s women tournament is about to get very interesting now that they are in a situation where the likelihood, though you never know for sure, is that the top seeds from each region will be in the final four. On the men’s side the UConn v, Duke game will likely go down in history as one of the all-time great sports moments.

 

Turning to the blog entry of the week, it is a published decision from the First Circuit, Walsh v. HNTB Corporation, decided on March 13, 2026, here, that doesn’t involve the ADA at all. Rather, it involves the Age Discrimination in Employment Act and considers the question of what is an adverse action after Muldrow. We have previously discussed what Muldrow might mean for failure to accommodate cases, here. While this case is not a failure to accommodate case nor is it even an ADA case, it is a published decision and offer some clues as to whether a failure to accommodate would be an adverse action. As usual, the case is divided into categories and they are: facts; court’s reasoning that the performance improvement plan was not an adverse action; and thoughts/takeaways and what might the impact of this case be on failure to accommodate claims. The decision also talks about constructive discharge, but there isn’t any need for us to spend a great deal of time on that. Basically, with respect to that issue, the court held that the situation the plaintiff resigned from was not so unpleasant that staying on the job while seeking redress would have been intolerable. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

In August 2019, the defendant placed Walsh on a three-month performance improvement plan that she successfully completed. About 10 months later, Walsh resigned. She then sued her employer, the defendant, alleging that the defendant committed unlawful age discrimination by placing her on the performance improvement plan and then constructively discharging her.

 

Between the end of the performance improvement plan and her resignation, Walsh never complained to human resources for submitted a complaint to the defendant’s hotline system about being mistreated by her supervisor or anyone else. She was not demoted from her position and her compensation was not reduced. No one at her employer ever asked or told Walsh to leave her employment. Nevertheless, 10 months after she had successfully completed the performance improvement plan, she and another coworker simultaneously resigned and quietly walked out together. Walsh then brought suit under Massachusetts law as well as the Age Discrimination in Employment Act

 

The District Court ruled that Walsh had not suffered an adverse action by being placed on the performance improvement plan because she successfully completed it and was neither demoted nor her pay reduced. Also any changes in her responsibilities would de minimus. The court also rejected the constructive discharge claim as well.

 

II

Court’s Reasoning That the Performance Improvement Plan Was Not an Adverse Action Post Muldrow

 

  1. In Muldrow, the Supreme Court held that an adverse action is any employment event, regardless of severity, where an employer’s conduct leaves an employee: 1) worse off; and 2) with respect to the terms or conditions of their employment.
  2. Many other antidiscrimination statutes, including the Age Discrimination in Employment Act (ADEA), use the same or similar language. So, courts have extended Muldrow to apply to those statutes as well.
  3. A performance improvement plan does not have the same effect in every employment situation. Sometimes, an employer may issue a performance improvement plan to warn an employee about performance deficiencies or assistant employee and developing a plan to achieve an identified opportunity for skill development. In those cases, a performance improvement plan is not an adverse employment action.
  4. A performance improvement plan may also impose new job responsibilities, change present terms of employment, or deprive an employee of potential advancement opportunities. In those situations, a performance improvement plan may well be an adverse employment action.
  5. Whether a performance improvement plan is an adverse action is fact intensive and specific to the performance improvement plan. The key is whether the performance improvement plan affected the terms or conditions of her employment.
  6. The PIP identified its purpose as providing Walsh with “the opportunity to correct [her] unsatisfactory performance.” It then identified several problem areas and provided a corresponding list of ways to improve. The PIP stated that Walsh should “be more proactive” and act as an “advocate” for the offices she supported; it also stated that Walsh should clean her office because it was so messy that it made “it difficult for employees to access IT resources.” The PIP did not assign Walsh new duties, alter her title or compensation, or limit her ability to seek other opportunities within the company. Its only reference to a term of employment was the company’s reservation of its right to terminate Walsh’s employment before the end of the plan. But Walsh has not argued that she was anything other than an at-will employee before, during, or after the PIP.
  7. A per se rule that all performance improvement plans are an adverse action is inconsistent with Muldrow’s requirement that the employee demonstrate a change in the terms or conditions of employment.
  8. Walsh never showed how the performance improvement plan altered her employment conditions, which is the key question post Muldrow.

 

III

Thoughts/Takeaways and What Might The Impact Of This Case Be On Failure To Accommodate Claims

 

  1. While this case is an ADEA case and not an ADA case at all. As the court noted, many statutes contain similar language, including the ADA.
  2. The decision is published and thereby precedential.
  3. With respect to constructive discharge, states very widely on what needs to be shown in order to support a constructive discharge claim, so be sure to check your jurisdiction. In general, being terminated presents an easier line of attack for plaintiff than a resignation does.
  4. Lots of debate out there about whether a performance improvement plan invariably leads to a termination, with some saying it needn’t work that way and others saying it invariably does. The answer may be very company specific.
  5. Adverse action is still a thing after Muldrow. The language in the decision about a performance improvement plan adverse action determination being very fact specific, makes one wonder just how easy it will be for employers to get summary judgment when it comes to adverse action determinations in general.
  6. The key question is whether the performance improvement plan affects the terms or conditions of a person’s employment.
  7. Something that changes the present terms of employment is an adverse action.
  8. An unreasonable delay in providing a reasonable accommodation for a denial of a reasonable accommodation certainly leaves an employee with a disability worse off with respect to the terms and conditions of their employment, which is a strong argument that an adverse action exists in those circumstances.
  9. Something that deprives an employee of potential advancement opportunities is an adverse action.
  10. An unreasonable delay in providing a reasonable accommodation certainly deprives an employee of advancement opportunities as a person with a disability is not going to be able to get to the same starting line as a person without a disability absent the reasonable accommodations. Accordingly, such a person would not be able to advance. Same can be said for failing to accommodate a person with a disability.
  11. My view was, see this blog entry, and remains after this case, is that a failure to accommodate is an adverse action.

 

A happy Easter and Passover to those who are celebrating.