Performance Improvement Plan Not an Adverse Action

The US Court of Appeals for the Third Circuit recently issued an unpublished opinion in which it found that imposing a performance improvement plan (PIP) on a federal employee is not an adverse employment action that alone can sustain a claim of discrimination. Reynolds v. Dept. of the Army, 3d Cir., No. 10-3600, July 22, 2011.

Raymond Reynolds accepted an engineering position with the Army in 2004. Reynolds had been a long-time federal employee prior to taking the new position. Reynolds' supervisor alleged that he did not take his job seriously, that he improperly delegated tasks, and did not comply with directives. Reynolds denied the allegations of poor performance. He alleged that his supervisor treated him dismissively and did not provide him with a job description or performance objectives.

The supervisor rated Reynolds at an unacceptable level on two of his seven performance objectives and placed him on a PIP. The PIP gave Reynolds 90 days to bring his performance to the acceptable level or to face reassignment, demotion or even termination. On the day after he received the PIP, Reynolds applied for two early retirement incentives, and later filed an EEO complaint alleging age discrimination. In order to prove his case of age discrimination, Reynolds had to prove that 1) he was 40 years of age or older; 2) the agency had taken an adverse employment action against him; 3) that he was qualified for the position he held; and 4) that he was replaced by a person sufficiently younger to support an inference of age discrimination.

The Army argued that Reynolds' placement on a PIP did not rise to the level of qualifying as an "adverse employment action." The court agreed. It noted that the Supreme Court has taught that an adverse employment action is 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." Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998).

The circuit court found that, far from changing the employee's conditions of employment, a PIP by itself was meant to help the employee better perform the duties he or she already has. The court cited the decisions of the Seventh, Eight, and Tenth Circuits which all similarly found that a PIP is not an adverse employment action when it is not accompanied by some change in the conditions of the employee's employment.

This decision deals a blow to employees who believe that they have been placed on a PIP because of discriminatory animus against them. The PIP alone will not be enough to lodge a valid complaint of discrimination. The employee must either wait until she does not successfully pass the PIP and some adverse employment action is later imposed, or must raise the PIP as part of a series of harassing events constituting a hostile work environment. Fortunately, as an unpublished opinion, this decision has no precedential value.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to https://www.passmanandkaplan.com.