The short answer is probably not.
Performance improvement plans or PIPs are an effective tool to document an employee’s work issues, establishing constructive goals over a set time frame. Ideally, the employee improves their performance and works with newfound success.
Employee redeemed. Lawsuit averted.
If the employee fails to correct their performance, however, and is ultimately terminated, the employer will be better positioned to defend against a retaliation lawsuit. Generally, PIPs are notable for their specificity, often addressing longstanding concerns. For even the most opportunistic plaintiff, blaming performance issues on discrimination or retaliation is a dubious maneuver if the PIP is detailed, corroborated by witnesses, or if the employee has acceded to some of the deficiencies.
While performance improvement plans are a prudent practice, is simply issuing a PIP grounds for a lawsuit? For retaliation claims, an employee can prove a prima facie case by establishing that a reasonable employee would have found the alleged retaliatory actions “materially adverse” in that they “‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, (2006)(quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).
Courts across the country have determined that a PIP is not an adverse action. For example, in Cole v. State of Illinois, 562 F.3d 812, 817 (7th Cir. 2009), the court found that the plaintiff suing for FMLA retaliation was not subjected to an adverse action after being placed on a PIP. In a case from the 8th Circuit, the Court reasoned that placing an employee on a “performance improvement plan,” without more, did not constitute an adverse employment action. Givens v. Cingular Wireless, 396 F.3d 998, 998 (8th Cir. 2005); see also Henthorn v. Capitol Communications, Inc., 359 F.3d 1021, 1028 (8th Cir. 2004) (negative employment review is actionable only if used as a basis to diminish terms or conditions of employment). Similarly, in Perry v. New Jersey Department of Corrections, a race retaliation case under Title VII, the Court reasoned “the mere issuance of a letter of counseling…” is not an adverse employment action. Perry v. New Jersey Dep’t of Corr., No. CV 21-03523 (GC) (RLS), 2023 WL 3742850, at *8 (D.N.J. May 31, 2023), aff’d, No. 23-2207, 2024 WL 3384920 (3d Cir. July 12, 2024). “[A] negative employment evaluation, unaccompanied by a tangible detriment, such as a salary reduction or job transfer, is insufficient to rise to the level of an adverse employment action.” Id. (citing El-Sioufi v. St. Peter’s Univ. Hosp., 887 A.2d 1170, 1188 (N.J. Super. Ct. App. Div. 2005)).
In other retaliation cases, however, performance evaluations and “improvement letters” have constituted adverse actions. See, e.g., Boandl v. Geithner, 752 F.Supp.2d 540, 565 (E.D. Pa. Nov. 2, 2010) (finding an adverse action for a retaliation claim could exist where “[a]long with the negative performance evaluation, [an employee receives] an Opportunity to Improve letter affording him 120 days to improve his performance, inform[ing] him that his work would be periodically reviewed, and [telling] him that if he did not improve his performance, he would face termination”). The United States District Court in New Jersey found that a negative performance evaluation issued to a state trooper constituted an adverse action in a 2008 retaliation case. Est. of Oliva v. New Jersey, 589 F. Supp. 2d 539, 541 (D.N.J. 2008). Specifically, the Court concluded that the evaluation issued after an apparent complaint of discrimination by the trooper “could have a deterrent effect,” dissuading other troopers from engaging in protected activity. Id. at 542.
Nevertheless, the reality of employment litigation is more complicated. A plaintiff must surpass multiple hurdles before taking a case to trial. In addition to showing they were subjected to an adverse action, a plaintiff must prove that they engaged in protected activity, such as complaining of discrimination, and then connect that protected conduct to the adverse action. If these steps are met, the plaintiff then must demonstrate that the employer’s legitimate reasons for the adverse action are pretextual. A PIP centered on persistent and documented performance deficiencies makes a plaintiff’s burden substantially steeper.
Thus, while it is unlikely that issuing a PIP alone will constitute a viable retaliation lawsuit, this measure may also protect the employer if an employee sues following their termination. Tellingly, the failure to issue a PIP to a struggling employee before termination has been convincingly cited for the proposition that the reasons for termination were a pretext for retaliation. Brennan v. Five Below, Inc., No. CV 22-1383, 2025 WL 817597 at *5-7 (E.D. Pa. Mar. 13, 2025). Put another way, the risks to an employer in issuing a PIP are vastly outweighed by the pitfalls of terminating an employee without issuing one.
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