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Fourth Circuit Says Placing Employee on PIP Not Discrimination Under Title VII

    Client Alerts
  • August 03, 2015
Employers routinely use Performance Improvement Plans (PIPs) to notify employees of job performance issues. If an employee believes that they have unfairly been placed under a PIP, can this form the basis for an employment discrimination claim? According to a recent unpublished decision from the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina), mere issuance of a PIP will not suffice as the basis for a discrimination claim under Title VII as a matter of law.

In Jensen-Graf v. Chesapeake Employers’ Ins. Co., the plaintiff received a PIP due to insufficient client visits and delays in work product. She filed an EEOC charge, claiming that the PIP was issued based on her gender. She filed a follow-up retaliation charge when she was not allowed to participate in a professional development course. The district court granted summary judgment to the employer on the basis that neither action met the legal requirements for discrimination or retaliation claims.

On appeal, the Fourth Circuit agreed. The court noted that discrimination claims under Title VII require some form of adverse employment action. This action can include termination, demotion, a pay cut, denial of a promotion, transfer, change in benefits, etc. However, placement under a PIP does not include any of the elements required to constitute an adverse employment action. It simply notifies the employee of the employer’s dissatisfaction with their performance. Similarly, denial of an opportunity to attend a single professional development class does not meet the requirements for a retaliation claim, because it could not plausibly deter an employee from pursuing their rights under Title VII.

The legal standards for discrimination and retaliation are different. Actions not constituting an adverse employment action for purposes of discrimination claims could form the basis for a retaliation claim. That said, routine employee evaluation procedures such as PIPs will not serve as the legal basis for a claim of employment discrimination regardless of how strongly the employee believes they are motivated by discriminatory animus.