Discriminatory Behavior: Do PIPs and “Coaching Plans” Count?

Anyone familiar with educator employment has likely heard the terms PIP, PDP, or FIP before.  PIPs, short for Professional Improvement Plans, are generally the first attempt of an employer to change the behavior of an employee.  Understandably, many people find being placed on PIPs surprising and very stressful, this is particularly true when an individual has been with an employer for decades only to find themselves suddenly placed under a microscope.  Placement on a PIP can make an individual to feel targeted and harassed, which leads to the obvious question, can a PIP by itself be discriminatory?  A recent decision from a federal appellate court addresses just this issue.  See Perret v. Nationwide Mutual Ins. Co., 770 F.3d 336 (5th Cir. 2014) (hat tip to the Laconic Law Blog for pointing this case out).  Hit the jump for the analysis…

To begin with, PIPs, also called PDPs or Professional Development Plans, generally set forth some number of issues that an employer has with an employee and then provides a series of steps that the employee has to take to bring their performance up to the employer’s standards.  These steps can be as simple as reviewing an article or YouTube video or as onerous as multiple observations in a week combined with stringent paperwork deadlines.  The unfortunate truth is that while many courts see PIPs as attempts to correct an employees behavior, they are often instead just the first step to terminating a teacher who has gotten on the wrong side of an administrator.  By combining impossible work loads with incredibly specific deadlines, employers are able to essentially create a record of a poorly performing employee leading to discipline or termination.  This is exactly what the employees in this case argued had happened to them.

In Perret, two managers at a company were under the same supervisor.  These two were the oldest managers in their region and one of them was the only African-American manager in the region.  At about the same time, the managers were placed on “coaching plans.”  The managers contended that these plans were based on minor or trivial performance issues and included vague or subjective criteria that were impossible to meet.  After failing to improve according to the plans, the managers were each placed on a PIP.  Shortly afterwards, both employees resigned and brought suit for age and race discrimination against their employer.  Both employees prevailed at trial but on appeal, the court vacated those verdicts and left them with nothing.

The court began by noting that in order to show that the discriminatory actions of their employer caused their resignations (in other words that they were “constructively discharged”) the managers would have to show that working conditions were “so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.”  The court then listed several factors that are relevant to finding an individual constructively discharged:

  1. Demotion;
  2. Reduction in salary;
  3. Reduction in job responsibilities;
  4. Reassignment to menial or degrading work;
  5. Badgering or humiliation;
  6. Offers of early retirement combined with threats of worsening conditions if not taken; and
  7. Providing an ultimatum that the person quit or be fired.

The court then held that even though the jury had decided for the managers, the PIPs that the managers were placed on did not qualify as any of the factors that could support a claim for constructive discharge.  This was true even though one of the managers lost a bonus because he was on the PIP.  Therefore, the court reversed the jury and ordered the trial court to enter a decision for the employer.

One important point to note is that the managers in Perret claimed that a PIP was their employers final step before terminating an employee.  In the education world in Missouri, PIPs are generally only the first step, therefore they are far less serious than the alleged discriminatory behavior in Perret.  This means that it would be even less likely for a court to consider a PIP of an educator in Missouri sufficient to support a claim that the person was constructively discharged.

While PIPs are very serious, they are not guaranteed to lead to the loss of a job.  If you are a Missouri NEA member and are working under a PIP, PDP, or other plan, contact your UniServ Director immediately for support.  The same is true if you feel that you may be being discriminated against, your UniServ Director is your first stop for help.

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