The recent First Circuit decision inWalsh v. HNTB Corp (March 13, 2026), gives employers in Puerto Rico a useful point of reference on employee performance management and discrimination risk. In Walsh v. HNTB Corp., the court held that the employee’s performance improvement plan (“PIP”) did not amount to an actionable adverse employment action on the facts presented.
The employee was placed on a PIP after documented performance concerns, successfully completed it, remained in her role with no reduction in pay, and later resigned. In affirming summary judgment for the employer, the court also rejected her constructive discharge claim. The court’s analysis is significant because it applies the Supreme Court’s recent standard from Muldrow v. City of St. Louis. While Muldrow was a Title VII case (sex discrimination), the First Circuit clarified here that this federal standard—which defines an adverse action as any employment event where an employer’s conduct leaves an employee “worse off” regarding the terms or conditions of their employment—also governs claims under the ADEA
The Process Surrounding the PIP
The decision is helpful, but its value lies less in the word “PIP” than in the process surrounding it. A PIP is not a shield by itself. What matters is whether it functions as part of a legitimate and organized performance-management system.
In Walsh, the record reflected prior evaluations, identified deficiencies, stated expectations for improvement, and follow-up review. That made the PIP look like documented counseling and corrective management, not a disguised adverse-employment measure.
The Connection to HR Discipline
This is where the connection to HR discipline becomes especially important. In a well-run organization, performance reviews, coaching, written counseling, PIPs, and disciplinary measures should not operate as disconnected events. They should form part of a coherent process.
- Early reviews identify concerns.
- Corrective discussions communicate them clearly.
- Improvement plans provide a defined opportunity to respond.
- Further discipline, if required, follows from the documented history rather than appearing suddenly or selectively.
Operational and Legal Purposes
That structure serves both operational and legal purposes. Operationally, it gives the employee fair notice and a real chance to improve. Legally, it helps demonstrate consistency, business justification, and good process. It becomes harder for a claimant to characterize the employer’s actions as abrupt, selective, retaliatory, or pretextual when the record reflects continuity and discipline in management itself.
At the same time, employers should not overread the decision. The First Circuit did not say that every PIP is lawful, or that any document labeled “corrective action” will survive scrutiny. To the contrary, the court recognized that whether a PIP is actionable depends on how it operates in practice. If it is used to change duties materially, damage advancement opportunities, worsen working conditions, or pressure resignation, it may look very different.
Supervisory Execution
That is why supervisory execution matters as much as formal documentation. Employers may have a written process and still create risk if managers apply it inconsistently, escalate too late, or communicate poorly. Structure is not just paperwork. It is consistency in review, discipline, tone, timing, and follow-through.
The Practical Lesson from Walsh
The practical lesson from Walsh is therefore clear. Employers should not think in terms of just “using a PIP.” A PIP can be a double edge sword if there is inconsistency between the different disciplinary processes the employee is moved through. They should think in terms of maintaining an integrated HR process in which performance review, corrective counseling, improvement planning, and discipline are aligned. When that happens, the employer is better positioned to defend its decisions and less likely to appear arbitrary or pretextual if litigation follows.
Bottom line: a PIP is not the protection. The protection is a structured, documented, and consistently administered HR process.
Employers in Puerto Rico dealing with performance concerns, performance improvement plans, progressive discipline, or sensitive termination decisions may also wish to review our page on employment legal services for employers in Puerto Rico.