Issuing Performance Improvement Plan is Not Unlawful Retaliation

By Ted Olsen

As we previously reported, in Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53 (2006), the U.S. Supreme Court ruled that retaliation liability under Title VII may be based on any employer conduct that would dissuade a reasonable employee from exercising his or her legal rights, even if the conduct did not have an economic impact on an employee or rise to the level of a so-called "adverse employment action." Since Burlington Northern, employers have been concerned about possible retaliation liability arising from assorted actions about which employees would claim to be offended.

A recent Seventh Circuit Court of Appeals decision, however, helpfully provides that a performance improvement plan given to an employee is no basis for retaliation liability. Cole v. State of Illinois, Case No. 08-1754, --- F.3d --- (7^th Cir. Apr. 7, 2009).

In Cole, the employer gave an employee a PIP during a period when she was taking intermittent leave under the Family and Medical Leave Act (the intermittent leave followed a period of full-time FMLA leave). The PIP suggested that she (a) communicate more clearly with her supervisor about her work schedule and periods when she would be out of the office, (b) be more aware of her tone in light of assorted complaints regarding rudeness, and (c) should work on "becoming a better listener." The PIP provided that, in three weeks, her performance would be assessed again.

The employee was fired for refusing to sign the PIP, even after two warnings that her refusal would result in her dismissal. In her FMLA case, she asserted that both the PIP and the dismissal were retaliatory actions.

The Seventh Circuit held that the PIP was not a retaliatory action, as a matter of law, as the suggestions in the PIP "would not dissuade a reasonable person from exercising her rights," and did not deprive Ms. Cole "of responsibility, hours, pay, or any other relevant accoutrement of her position." The Court also rejected the retaliatory discharge claim as there was no evidence that the employer acted with retaliatory intent when terminating plaintiff's employment.

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

© 2009 Sherman & Howard L.L.C. June 5, 2009

	Contact Us Services Attorneys News and Events Publications About the Firm Inclusiveness Careers Blog In the Media Events and Registration Press Releases Speaking Engagements Articles Client Advisories Subscriptions History Offices Pro Bono Interlaw Contact Us Culture Legal Opportunities Support Staff Publications Client Advisories Home > Publications > Client Advisories > View Issuing Performance Improvement Plan is Not Unlawful Retaliation By Ted Olsen As we previously reported, in Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53 (2006), the U.S. Supreme Court ruled that retaliation liability under Title VII may be based on any employer conduct that would dissuade a reasonable employee from exercising his or her legal rights, even if the conduct did not have an economic impact on an employee or rise to the level of a so-called "adverse employment action." Since Burlington Northern, employers have been concerned about possible retaliation liability arising from assorted actions about which employees would claim to be offended. A recent Seventh Circuit Court of Appeals decision, however, helpfully provides that a performance improvement plan given to an employee is no basis for retaliation liability. Cole v. State of Illinois, Case No. 08-1754, --- F.3d --- (7^th Cir. Apr. 7, 2009). In Cole, the employer gave an employee a PIP during a period when she was taking intermittent leave under the Family and Medical Leave Act (the intermittent leave followed a period of full-time FMLA leave). The PIP suggested that she (a) communicate more clearly with her supervisor about her work schedule and periods when she would be out of the office, (b) be more aware of her tone in light of assorted complaints regarding rudeness, and (c) should work on "becoming a better listener." The PIP provided that, in three weeks, her performance would be assessed again. The employee was fired for refusing to sign the PIP, even after two warnings that her refusal would result in her dismissal. In her FMLA case, she asserted that both the PIP and the dismissal were retaliatory actions. The Seventh Circuit held that the PIP was not a retaliatory action, as a matter of law, as the suggestions in the PIP "would not dissuade a reasonable person from exercising her rights," and did not deprive Ms. Cole "of responsibility, hours, pay, or any other relevant accoutrement of her position." The Court also rejected the retaliatory discharge claim as there was no evidence that the employer acted with retaliatory intent when terminating plaintiff's employment. Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation. © 2009 Sherman & Howard L.L.C. June 5, 2009 Copyright 2000-2013 Sherman & Howard L.L.C. All rights reserved. Privacy Policy \| Terms of Use