We received the following question via Ask FELTG.
Dear FELTG: I recall from attending UnCivil Servant that putting an employee on a PIP does not give them standing to file an EEO complaint, but can an employee claim being put on a PIP is whistleblower reprisal?
Thanks for the question. Let’s look at your recollection of EEOC’s stance first:
You’re correct in remembering that the Performance Improvement Plan (PIP) is a preliminary step to taking a personnel action and, in most instances, does not constitute an adverse action sufficient to render an employee aggrieved for the purposes of filing an intentional discrimination claim. See Lopez v. Agriculture, EEOC No. 01A04897 (2000); Jackson v. CIA, EEOC No. 059311779 (1994).
In fact, in the analysis that accompanied EEOC’s initial 1992 regulations at 29 CFR Part 1614, EEOC explained: “We intend to require dismissal of complaints that allege discrimination in any preliminary steps that do not, without further action, affect the person; for example, progress reviews or improvement periods that are not a part of any official file on the employee.”
Being put on a PIP could come in as a fact alleged in a claim of harassment or reprisal, but standing alone, a PIP generally does not aggrieve an employee for the purposes of filing an EEO complaint.
As far as a PIP being considered whistleblower reprisal, the answer is yes, it can. In fact, a fairly recent nonprecedential MSPB case addressed this very issue and highlighted that “a performance improvement plan (PIP) may constitute a personnel action under the Whistleblower Protection Act (WPA) and that an agency action need not be ‘formal discipline’ to constitute a covered personnel action.” Ingram-Williams v. VA, SF-1221-16-0352-W-1, ¶1 (Dec. 12, 2023) (NP).
The case explains that while placement on a PIP, formal counseling, and other matters do not constitute formal personnel actions under the Civil Service Reform Act, “a PIP and equivalent opportunity-to-improve programs involve a threatened personnel action, such as a reduction in grade or removal, and thus are personnel actions under the WPA.” Id. at ¶16. [Bold added]. Because threats of personnel actions can render an employee aggrieved under the WPA, an employee has standing to claim that placement on a PIP is whistleblower reprisal.
A quick note: the terms personnel actions and adverse employment actions have varying meanings depending on the forum. We’ll help you navigate that, and much more, during FELTG’s most popular employee relations class MSPB Law Week, April 15-19.
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