The court found that a negative performance review, alone, or placement on a PIP, alone, does not constitute a materially adverse action. Id. at 23. However, in this case, the PIP was actually implemented and imposed conditions with which the plaintiff’s failure to comply ultimately led to his termination. Id. The PIP required the plaintiff to meet the “Needs Improvement” level to keep his job and became subject to a demotion or termination without receiving another PIP. Id. The court found that these requirements could dissuade a reasonable employee from making a Charge of Discrimination and therefore could be considered a “materially adverse action.”
This case stands for an important point of law. Employees who complain about illegal behavior and then receive a negative performance review or are placed on PIP may be able to make out a prima facie case of retaliation if the review or the PIP impose conditions on employment that are later used as a basis for termination. If you think you have been discriminated against or retaliated for making a complaint, contact our office to schedule an appointment.