By Deborah Hopkins, December 14, 2016

A couple of weeks ago, Bill and I held a brand-new training class in Atlanta: Developing and Defending Discipline (next coming to San Diego February 28 – March 2).  One of the questions that came up was a question we get frequently enough that I figured it was worth a newsletter article.

Here’s the question: Can an employee file an EEO complaint about being put on a Performance Improvement Plan (PIP)?

Here’s the short answer: an employee can file an EEO complaint for just about anything.

But, here’s the more fulsome answer: a 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. See Lopez v. Agriculture, EEOC No. 01A04897 (2000); Jackson v. CIA, EEOC No. 059311779 (1994) (holding that performance improvement plans which are not placed in the employee’s official personnel folder do not constitute adverse actions).

That means that if an employee files an EEO complaint and the basis of the complaint is something like, “I was placed on a PIP because of my race [and/or sex, age, religion, national origin, disability, etc.],” then the agency should not accept this as a valid EEO complaint because this is not a personnel action that forms the proper basis for a complaint.  Placing an employee on a PIP is what we in the business refer to as a preliminary step (see Lopez, above).

That’s right, EEOC seems to side with management on this one. In the Analysis that accompanied the 1992 issuance of EEOC 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.”

In other words, EEOC itself says the PIP does not “affect the person” because it is not a personnel action; is simply a chance for the employee to show she can do her job. If she’s focused on filing an EEO complaint instead of meeting her performance standards during the PIP period, I think we’d all agree that the chances she’ll be able to successfully survive the PIP are pretty low.

If a federal employee comes to us (or to any of our instructors who are attorneys) and asks us to represent him in an EEO complaint, and we find out he is filing a complaint for discrimination because he was put on a PIP, our reply is always, “Get back to work; you have a job to do.”  PIP time is not the time to file an EEO complaint; you know it’s true when the EEOC has made an affirmative statement on the topic.

As an aside, someone could initiate a claim that being placed on a PIP was an act of reprisal for engaging in protected EEO activity. The reprisal standard makes it illegal “to discriminate” against someone for engaging in the EEO process or for speaking out against discriminatory policies, and putting someone on a PIP because of such activity is discrimination. While a supervisor needs only to articulate a reason to initiate a PIP, that supervisor will need solid evidence to combat a reprisal claim.

Also worth noting, a complainant could use her placement on a PIP as evidence toward a hostile work environment claim, though as stated above the PIP alone isn’t sufficient to initiate the EEO complaint.

And finally, on another related matter, if an employee alleges the PIP was initiated in retaliation for protected union activity or whistleblower activity, the supervisor will also have to defend those claims under the related elements of retaliation.

Remember, a PIP is not an adverse action, so documentation of the employee’s unacceptable performance as a reason for initiating the PIP should meet that evidence standard necessary to defend against the retaliation claims. Keep your notebook close, supervisors, and with these things in mind, PIP away! Hopkins@FELTG.com

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